Cluster 375743

To prove a crime, the government must show the defendant intended to create a scheme “reasonably calculated to deceive persons of ordinary prudence and comprehension.” Id. at 1498-99 (citing U.S. v. Bruce, 488 F.2d 1224, 1229 (5th Cir.1973)); but see, U.S. v. Brien, 617 F.2d 299 , 311 (1st Cir.1980), and U.S. v. Maxwell, 920 F.2d 1028, 1036 (D.C.Cir.1990) (disagreeing with us and holding that mail fraud can he even where only “most gullible” would be deceived).

See United States v. Abrams, supra; United States v. Roche, 614 F.2d 6 (1st Cir. 1980); Application of Lafayette Academy, 610 F.2d 1 (1st Cir. 1979); but cf. United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980) (where there is probable cause that pervasive fraud scheme existed, all the business records of a business may be seized if accurately described).

It does not follow, however, that creation of a central regulatory authority [the CFTC] means abolition of common law rights, unless their retention would render the regulatory scheme ineffective.”); United States v. Brien, 617 F.2d 299, 310 (1st Cir. 1980) (“While courts have held that the CFTA preempts state regula- tion of commodities futures, it has also been held that the CFTA does not preempt state general antifraud statutes.”) (citation omitted). 15 likely to succeed …

We rejected Colton’s argument and affirmed his convictiqns, explaining that “the susceptibility of the victim of the fraud, in this case a financial institution, is irrelevant to the analysis.” See Colton, 231 F.3d at 903 ; see also United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980) (“If a scheme to defraud has been or is intended to be devised, it makes no difference whether the persons the schemers intended to defraud. are. gullible or . skeptical, dull or bright.

See, e.g., Brien, 617 F.2d at 311 (“We discern no intention on the part of Congress to differentiate between schemes that will ensnare the ordinary prudent investor and those that attract only those with lesser mental acuity.”).

LaFave, Search and Seizure § 4.6(d) (Sth ed. 2018) (quoting United States v. Brien, 617 F.2d 299, 309 (1st Cir. 1980)) (footnotes omitted).

In so arguing, Arif “march[es] into the teeth of a strong judicial policy disfavoring the implied repeal of statutes.” United States v. Brien, 617 F.2d 299, 310 (1st Cir. 1980); Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936) (“The cardinal rule is that repeals by implication are not favored.”).

When prejudice is presumed, “no inquiry need be made as to the actual effect of the publicity on the petit jury.” United States v. Brien, 617 F.2d 299, 313 (1st Cir.1980) (citing Sheppard v. Maxwell, 384 U.S. 333, 352-55 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966)).

United States v. Brien, 617 F.2d 299, 309 (1st Cir.1980).

II.) See, e.g., United States v. Oloyede, 982 F.2d 133, 140 (4th Cir.1992) ("[A]ffidavit presented documentation in over 50 cases ..., two confidential informants outlined in great detail the procedures associated with appellants’ operation, and a review of 26 files disclosed that each file contained fraudulent documents.”); Nat'l City Trading Corp. v. United States, 635 F.2d 1020 , 1021-22 (2d Cir.1980) (affidavit listed 40 complaints about the enterprise, 20 of which had b…

Applying the pervaded-by-fraud exception, courts have held that, "where there is probable cause to find that there exists a pervasive scheme to defraud, all the business records of an enterprise may be seized, if they are ... accurately described so that the executing officers have no need to exercise their own judgment as to what should be seized." United States v. Brien, 617 F.2d 299, 309 (1st Cir.1980).

Id. at 242 (citations and quotation omitted); see also Amico, 486 F.3d at 780 (affirming district court’s holding that the “reasonable victim” defense does not apply to allegations of mail fraud); United States v. Biesiadecki, 933 F.2d 539, 544 (7th Cir.1991) (“Those who are gullible, as well as those who are skeptical, are entitled to the protection of the mail fraud statute.”); United States v. Maxwell, 920 F.2d 1028, 1036 (D.C.Cir.1990) (disagreeing with Pelletier and hol…

When we decided Brown , we acknowledged that our holding was contrary to the decisions of at least two of our sister circuits, 79 F.3d at 1557 (citing United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980); United States v. Maxwell, 920 F.2d 1028, 1036 (D.C.Cir.1990)), but our decision, in fact, was contrary to the interpretations of several circuits, including that of the former *1167 Fifth Circuit.

See United States v. Davis, 226 F.3d 346, 358-59 (5th Cir.2000); United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir. 2000): United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir.1995); United States v. Biesiadecki, 933 F.2d 539, 544 (7th Cir.1991); United States v. Maxwell, 920 F.2d 1028, 1036 (D.C.Cir.1990); United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980).

Cir. 1990); United States v. 8 Brien, 617 F.2d 299, 311 (1st Cir. 1980). 9 We have expressly rejected the Brown defense in the context of 18 U.S.C. § 2314 , which 10 prohibits the inducement of travel in interstate commerce for a fraudulent purpose.

Instead, “the only issue is whether there is a plan, scheme or artifice intended to defraud.” Id. at 1036 (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980)).

See, e.g., United States v. Coffman, 94 F.3d 330, 334 (7th Cir.1996); United States v. Maxwell, 920 F.2d 1028, 1037 (D.C.Cir.1990); United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980).

United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980); see also United States v. Moore, 923 F.2d 910, 917 (1st Cir.1991) (not a defense to fraud that a corporate victim had insufficient internal controls or procedures to prevent the fraud). 6 .

These are criminal statutes, not tort concepts.” United States v. Colton, 231 F.3d 890, 903 (4th Cir.2000) (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980)).

Compare United States v. Davis, 226 F.3d 346, 358-59 (5th Cir.2000) (fraud can be proven even if the victims’ reliance was not objec tively reasonable); United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir.2000) (objective reasonableness of victim not an element of federal fraud statutes); United States v. Biesiadecki, 933 F.2d 539, 544 (7th Cir.1991) (same); United States v. Maxwell, 920 F.2d 1028, 1036 (D.C.Cir. 1990) (same); United States v. Brien, 617 F.2d 299, 311 (1s…

These are criminal statutes, not tort concepts.") (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980)).

These are criminal statutes, not tort concepts.” United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980); 4 see also Neder, 527 U.S. at 24-25 , 119 S.Ct. 1827 (holding that “reliance” and “damages” are not necessary elements of an offense under the federal fraud statutes); United States v. Stewart, 872 F.2d 957, 960 (10th Cir.1989) (same); Speiser et al., supra, § 32.73 (“[T]he rule that fraud cannot be predicated on a failure to disclose facts where ... the truth may be as…

E.g., United States v. Humphrey, 104 F.3d 65, 69 (5th Cir.), cert. denied, 520 U.S. 1235 , 117 S.Ct. 1833 , 137 L.Ed.2d 1038 (1997); Oloyede, 982 F.2d at 140-41 ; United States v. Sawyer, 799 F.2d 1494,1508 (11th Cir.1986), cert. denied, 479 U.S. 1069 , 107 S.Ct. 961 , 93 L.Ed.2d 1009 (1987); United States v. Kail, 804 F.2d 441, 445 (8th Cir.1986); United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980).

In addition, it is proper to seize all the records of the enterprise “so that the executing officers have no need to exercise their own judgment as to what should be seized.” United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 119 (1980).

In United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980), a search warrant was held not to be overbroad where from 250 complaints regarding a commodities business it could fairly be inferred that the reported complaints were just the tip of the iceberg.

In endeavoring to justify its actions, the government begins by erroneously identifying the focus of defendants’ lack of specificity argument as the McCormick “affidavit,” (Gov’t’s Resp. at 58), rather than the warrants which were actually targeted, followed by the assertion that the “all records” exception — to be discussed momentarily — is applicable to all of the searches “especially Hickey’s Carting, Inc. and Grand Carting, Inc.” (Id. at 59, 61-62 (citing National City T…

Thus, when an individual is swindled, the offender does not escape mail or wire fraud liability just because the victim was unwary, or even "gullible." See United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980).

Cf. United States v. Richardson, 8 F.3d 15, 17 (9th Cir.1993) (holding that 18 U.S.C. § 1920 , the misdemeanor false statement provision of the Federal Employees Compensation Act (“FECA”), preempted 18 U.S.C. § 1001 because § 41 of FECA expressly repealed all inconsistent statutes). 5 .See also In re Coastal Group, Inc., 13 F.3d 81, 85 (3d Cir.1994); United States v. Parziale, 947 F.2d 123 , 127 & n. 10 (5th Cir.1991); United States v. Zabel, 702 F.2d 704, 708 (8th Cir.1983)…

Thus, when an individual is swindled, the offender does not escape mail or wire fraud liability .just because the victim was unwary, or even “gullible.” See United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980).

See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980); United States v. Brien, 617 F.2d 299, 309 (1st Cir.1980).

United States v. Biesiadecki, 933 F.2d 539, 544 (7th Cir.1991); United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980).

United States v. Brien, 617 F.2d 299, 307 (1st Cir.1980) (citing, e.g., Gold v. United States, 350 F.2d 953, 956 (8th Cir.1965) (other citations omitted)).

United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980).

Moss v. Newman, 465 U.S. 1025 , 104 S.Ct. 1280 , 79 L.Ed.2d 684 (1984) (although proof in civil proceedings under RICO requires only a preponderance of the evidence, which is a lower standard of proof than in criminal proceedings, the standard does not relate to the elements of the predicate crimes, but to the burden that the plaintiff bears in showing the elements). 109 The elements of a mail fraud violation are a scheme to defraud and the use of the mails to execute or fur…

United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980).

United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980).

(See United States v. Oloyede, supra, 982 F.2d at pp. 139-140 [showing of immigration fraud involving Nigerian clients of attorney did not require exclusion of Ethiopian and nonimmigration clients’ files from description of property]; Williams v. Kunze (5th Cir. 1986) 806 F.2d 594, 598-599 [fraud involving offshore entities and transaction did not preclude seizure of documents relating to domestic activity]; United States v. Hayes (9th Cir. 1986) 794 F.2d 1348, 1355-1356 [se…

Whether the mail and wire fraud statutes were enacted to protect only persons of ordinary prudence and comprehension, United, States v. Boren, 305 F.2d 527, 533 (2d Cir.1962), or even the most gullible, United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980), meekness that is of another world should not be the governing standard. :H * * * * * For the above reasons, plaintiffs federal claims must be dismissed.

United States v. _____________ Brien, 617 F.2d 299, 306 (1st Cir. 1980). _____ In United States v. Moscatiello, 771 F.2d 589 , 601 _____________ ___________ (1st Cir. 1985), we reversed a district court decision which denied two individual defendants standing to contest the search of a warehouse which was owned by a corporation and used to store marijuana before transport.

United States v. Brien, 617 F.2d 299, 306 (1st Cir.1980).

In United States v. Brien, 617 F.2d 299, 307 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980), the court observed that "[t]he essence of a scheme is a plan to deceive persons as to the substantial identity of the things they are to receive in exchange." A scheme to defraud need not be fraudulent on its face, but "must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence an…

For example, in United States v. Brien, 617 F.2d 299, 308 (1st Cir.1980), the court found that the facts warranted a “strong belief that [defendant's] operation was, solely and entirely, a scheme to defraud.” Under those circumstances, the court held that a valid warrant could issue authorizing the seizure of all materials the magistrate judge had probable cause to believe were evidence of that scheme.

Contrary to the premise of his petition, and despite the government's silence, the scienter element under the mail and securities fraud statutes can be satisfied by something less than fraudulent intent or knowing falsehoods. 4 Although reckless mismanagement of funds might not always constitute fraud, appellant's version of how he understood the law is not too far from how courts actually read the mail and securities fraud statutes. 18 Because we find that the district cour…

This was that the defendant’s enterprise was similar to the high pressure “boiler room” telephone securities sales operation of Lloyd, Carr & Company in United States v. Brien, 617 F.2d 299, 309 (1st Cir.1980), as to which we said: We hold that where there is probable, cause to find that there exists a pervasive scheme to defraud, all the business records of an enterprise may be seized, if they are, as here, accurately described so that the executing officers have no need to…

See Blockburger v. United States, 284 U.S. 299, 304 (1932); ___ ___________ _____________ United States v. Faulhaber, 929 F.2d 16, 19 (1st Cir. 1991). _____________ _________ Cf. Edwards v. United States, 312 U.S. 473, 484 (1941) ___ _______ _____________ (rejecting contention that "in so far as the [Securities Act of 1933] prohibits the fraudulent sale of securities by mail, it repeals by implication the provisions of the old mail fraud statute in so far as they cover secur…

Nov. 30, 1988) (civil RICO action, quoting United States v. Brien, 617 F.2d 299, 307 (1st Cir.), cert. den., 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980)); see also McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 790-791 (1st Cir 1990) (discussing mail and wire fraud statutes in context of civil RICO action); see generally, Brad Brian, Glenn Pomerantz and Stacey Moritz, Mail Fraud, Wire Fraud, and Securities Fraud as Predicate Acts in Civil RICO, …

Cf. Edwards v. United States, 312 U.S. 473, 484 , 61 S.Ct. 669, 675 , 85 L.Ed. 957 (1941) (rejecting contention that “in so far as the [Securities Act of 1933] prohibits the fraudulent sale of securities by mail, it repeals by implication the provisions of the old mail fraud statute in so far as they cover securities”); Faulhaber, 929 F.2d at 19 (upholding application of § 1341 and securities fraud statute to same conduct); United States v. Brien, 617 F.2d 299, 309-10 (1st C…

United States v. Brien, 617 F.2d 299, 307 (1st Cir.1980), cert. denied 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980).

Cf. United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980) (analogous instruction given in mail fraud case). 10.

The only issue is whether there is a plan, scheme or artifice intended to defraud.” United States v. Brien, 617 F.2d 299, 311 (1st Cir.1980) (collecting other cases holding similarly), cert. denied, 446 U.S. 919 , 100 S.Ct. 1854 , 64 L.Ed.2d 273 (1980).