February 3, 2015
Governor Wolf
OFFICE OF THE GOVERNOR
225 Capitol Bldg
501 North 3rd Street
Harrisburg , PA 17120
Kathleen Kane
Office of the Attorney General
11 N 3rd St
16th Floor, Strawberry Square
Harrisburg , PA 17101
Sheriff Russell J. Bono
Montgomery County Court House
First Floor
P.O. Box 311
Norristown, PA 19404
Under Pennsylvania law, a fraudulent conveyance has occurred with regard to my property at 110 Banbury Avenue, North Wales, PA. I ask your assistance in regaining possession of the property where the judiciary has indicated a lack of jurisdiction to address, resolve or rectify the matter.
Documents recorded with the Montgomery County Recorder of Deeds demonstrate the deficiencies and frauds which occurred during the criminal transaction. Additional documents demonstrating the fraud have been filed with the Prothonotary.
Where a property owner is resident on the property, an Action to Quiet Title would permit the court to address the fraudulent conveyance of the property and rectify/resolve/remove the improperly recorded documents.
Where a property owner is not resident on the property, an Action in Ejectment is required to remove the trespassers from the residence and rectify/resolve/remove the improperly recorded documents.
The Montgomery County Court of Common Pleas has indicated a lack of jurisdiction and improperly dismissed an Action in Ejectment. On Appeal, the Superior Court of Pennsylvania has purportedly affirmed the lower courts decision
without any review of facts; and
without indication or support according to an applicable rule of law; and
without evidence of any judicial review of the issues presented on appeal; and
without any proceedings or hearings on the matter; and
while failing to address the issue of the appeal; and
neglecting every motion properly prepared and filed with the appellate court; and
failing to explain and produce ex parte communications/documents/orders and subsequent manipulation and concealment in the court docket.
The litigation causes lawyers representing the Defendants to be subject to sanctions where they have failed to present any defense; and neglected to offer evidence of proper ownership; and have no justification in law. Their actions have served to delay the resolution of the matter, denying the plaintiff of his home and property while demonstrating a lack of judicial independence and a corruption which adversely affects the integrity of every judge and every court.
The challenge of an unconstitutional law was indicated with evidence demonstrated by actions in the lower court. Additionally, The interception and interference by the legal staff of the Superior Court violate Pennsylvania law, federal law and the US Constitution.
A complaint of the unconstitutional and criminal actions of the court staff has been filed with
United States Attorney Zane Memeger, as the offenses occurred within the Eastern District of Pennsylvania.
Pennsylvania Attorney General Kathleen Kane, as the offenses occurred within Pennsylvania and as required by the Rules of Appellate Procedure the attorney general must be notified where an appeal will challenge the constitutionality of a law.
Philadelphia District Attorney Seth Williams, as the offenses occurred within the city and county of Philadelphia, Pennsylvania.
Bucks County District Attorney David Heckler, as I am a resident of Bucks County, PA.
The United States Postal Inspectors, Philadelphia, as the forged and fraudulent documents attributed to the judiciary were delivered through the use of the US Postal Service.
The Disciplinary Board of the Supreme Court of Pennsylvania, as the actions violate the Rules of Professional Conduct.
Attorney General Kathleen Kane has been ordered to SILENCE by two secret court orders from two unidentified courts. Where these orders additionally prevent investigation and require an improper negligence for the functions and responsibilities of the Attorney General, Kathleen Kane's failure might be 'explained'. But, what of the others who have neglected their law enforcement responsibilities and participation in a conspiracy to interfere with civil rights (42 USC § 1985, 18 U.S.C. § 241) under color of law (18 U.S.C. § 242).
Additionally, the following have been notified of the unconstitutional Pennsylvania law which has been improperly enacted by the Supreme Court of Pennsylvania where their authority requires laws 'consistent with [the Pennsylvania] Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant.' PA Constitution Article V Section 10(c)
- Pennsylvania Governor Tom Corbett
- The Senators and Representatives of the Pennsylvania Legislature
- The elected Sheriffs of Pennsylvania
- The Senators and Representatives of the US Congress
- President Barack Obama
- Pennsylvania Supreme Court Chief Justice Ron Castille
A Constitutional Challenge had been filed in federal district court and served upon the state attorney general in every state and territory, with notice to every state governor, as the same unconstitutional law has been enacted in every state and affects constitutionally protected rights of litigants while denying any protection of the law.
Improperly dismissed after default by every state attorney general, the United States Marshall service was notified along with the US Department of Justice and US Attorney General Eric Holder. An appeal to the Third Circuit Court affirmed the district court's dismissal while unsubstantiated by any dismissal doctrine and neglecting the facts associated with the matter.
Absent any available recourse within the judicial branch to address the theft by fraudulent conveyance of my property;
Having identified and demonstrated the unconstitutional collateral affect of the Rule 1.6 mandated non-disclosure and confidentiality by every legal professional;
With the resulting participation by the above-named persons, and all lawyers and legal professionals, in a conspiracy which denies constitutional rights, obstructing justice and denying the rule of law while neglecting any effort to address, remove or suspend the unconstitutional law;
I seek your assistance to regain possession of the residence which will permit me to file an Action to Quiet Title to resolve and rectify the fraudulent documents filed with the Montgomery County Recorder of Deeds.
Respectfully.
Terance Healy
cc:
Governor Wolf
Pennsylvania Legislature
Pennsylvania Supreme Court
Internet (www.work2bdone.com/live)
Media
Healy v Miller 2013-29976
Healy v Miller 900 EDA 2014
Attachments:
Notice Complaint of Unconstitutional Actions
Letter: Zane Memeger
Letter: Seth Williams
Letter: Kathleen Kane
Letter: David Heckler
Complaint: US Postal Inspectors
Overview of the Constitutional Challenge to Rule 1.6
Showing posts with label United States. Show all posts
Showing posts with label United States. Show all posts
Tuesday, February 3, 2015
Saturday, January 31, 2015
Mail Fraud
MAIL FRAUD AND WIRE FRAUD
Prosecution Policy Relating to Mail Fraud and Wire Fraud
Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.
See also USAM 9-85.210 (requires prior consultation with the Public Integrity Section to use the mail or wire fraud statutes in the prosecution of election fraud cases).
Further guidance and legal analysis of issues surrounding the investigation and prosecution of frauds involving use of the mail or wire, in violation of Title 18, United States Code, Sections 1341 and 1343 can be found in the Criminal Resource Manual:
Investigative Authority
Primary investigative jurisdiction of possible violations of the mail and wire fraud statutes is vested in the Federal Bureau of Investigation. In some cases, complaints involving securities may be investigated by the Securities and Exchange Commission. In addition, the Postal Inspection Service of the United States Postal Service may initiate mail or wire fraud investigations. In both situations, the investigations are usually continued by the agency initiating the investigation. Reports of investigation are disseminated directly to the appropriate United States Attorney.
18 U.S.C. Section 1341—Elements of Mail Fraud
"There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
The Scheme and Artifice to Defraud
The wire fraud statute was patterned after the mail fraud statutes. United States v. Lemon, 941 F.2d 309, 316 (5th Cir. 1991); United States v. Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987). Thus, the same principles apply in defining "scheme to defraud" for mail and wire fraud prosecutions. See Carpenter v. United States, 484 U.S. 19, 25 n. 6 (1987) ("The mail and wire fraud statutes share the same language in relevant part, and accordingly we apply the same analysis to both sets of offenses here."); United States v. Lemire, 720 F.2d 1327, 1334-35 n. 6 (D.C. Cir. 1983) ("The requisite elements of 'scheme to defraud' under the wire fraud statute [§ 1343] and the mail fraud statute [§ 1341], are identical. Thus, cases construing mail fraud apply to the wire fraud statute as well."), cert. denied, 467 U.S. 1226 (1984).
The mail fraud and wire fraud statutes do not define the terms "scheme" or "artifice" and the courts have traditionally been reluctant to offer definitions of either term except in the broadest and most general terms. Lemire, 720 F.2d at 1335 ("Congress did not define 'scheme or artifice to defraud' when it first coined that phrase, nor has it since. Instead that expression has taken on its present meaning from 111 years of case law.").
The fraudulent aspect of the scheme to defraud is to be measured by nontechnical standards and is not restricted by any common-law definition of false pretenses. "[T]he words 'to defraud' in the mail fraud statute have the 'common understanding' of '"wrongdoing one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, chicane, or overreaching."'" Carpenter, 484 U.S. at 27 (quoting McNally v. United States, 483 U.S. 350, 358 (1987) (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924))). "The concept of 'fraud' includes the act of embezzlement, which is '"the fraudulent appropriation to one's own use of the money or goods entrusted to one's own care by another."'" Id. (quoting Grin v. Shine, 187 U.S. 181, 189 (1902)).
No Loss or Gullible Victims
"It is the scheme to defraud and not actual fraud that is required." United States v. Reid, 533 F.2d 1255, 1264 (D.C. Cir. 1976).
"No particular type of victim is required . . . nor need the scheme have succeeded." United States v. Coachman, 727 F.2d 1293, 1302-03 n. 43 (D.C. Cir. 1984).
No actual loss to the victims is required. See United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.)
"The fraud statutes speak alternatively of devising or intending to devise a scheme to defraud and do not require that the deception bear fruit for the wrongdoer or cause injury to the intended victim as a prerequisite to successful prosecution. [S]uccess of the scheme and loss by a defrauded person are not essential elements of the crime under 18 U.S.C. §§ 1341, 1343 . . . .", cert. denied, 429 U.S. 924 (1976); see also United States v. Jordan, 626 F.2d 928, 931 (D.C. Cir. 1980)
"The amount of money realized as a result of the scheme is not an essential element of mail fraud. It was not even necessary to prove that the scheme succeeded."
For a discussion of fraud loss computation in sentencing see Guidelines Sentencing (Federal Judicial Center, 1997), Section II.D.2. Offense Involving Fraud and Deceit.
"[I]t makes no difference whether the persons the scheme is intended to defraud are gullible or skeptical, dull or bright . . . . " United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990) (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980)).
"[T]he monumental credulity of the victim is no shield for the accused . . ." Id. (quoting Deaver v. United States, 155 F.2d 740, 744-45 (D.C. Cir.), cert. denied, 329 U.S. 766 (1946)); cf. Pollack, 534 F.2d at 971 (To hold that actual loss to victim is required "would lead to the illogical result that the legality of a defendant's conduct would depend on his fortuitous choice of a gullible victim.") (quoted in Maxwell, 920 F.2d at 1036).
Proof of Scheme and Artifice to Defraud
To sustain a conviction the government must prove the existence of a scheme; it is not required, however, to prove all details or all instances of allegedly illicit conduct. See, e.g., United States v. Stull, 743 F.2d 439, 442 n. 2 (6th Cir. 1984) ("It is well established that proof of every allegation is not required in order to convict; the government need only prove that the scheme to defraud existed."), cert. denied, 470 U.S. 1062 (1985); United States v. Halbert, 640 F.2d 1000, 1008 (9th Cir. 1981) ("[T]he Government need not prove every misrepresentation charged conjunctively in the indictment."); United States v. Jordan, 626 F.2d 928, 930 (D.C. Cir. 1980) ("The Government is not required to prove the details of a scheme; it is, however, required to prove beyond a reasonable doubt . . . that the defendant . . . willfully and knowingly devised a scheme or artifice to defraud . . . .") (quoting with approval the trial court's instruction on § 1341); United States v. Amrep Corp., 560 F.2d 539, 546 (2d Cir. 1977)
("A scheme to defraud may consist of numerous elements, no particular one of which need be proved if there is sufficient overall proof that the scheme exists."), cert. denied, 434 U.S. 1015 (1978); Anderson v. United States, 369 F.2d 11, 15 (8th Cir. 1966) (all instances of illicit conduct need not be proved to sustain a conviction), cert. denied, 386 U.S. 976 (1967).
"All that is required is that [the defendant has] knowingly and willingly participated in the scheme; she need not have performed every key act herself." United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990). The "evidence need only show that defendant was a 'knowing and active participant' in scheme to defraud and that scheme involved interstate wire communications." Id. (quoting United States v. Wiehoff, 748 F.2d 1158, 1161 (7th Cir. 1984)).
McNally and Intangible Rights
In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" . . . and that the statute is "limited in scope to the protection of property rights." See Carpenter v. United States, 484 U.S. 19, 25 (1987) (quoting McNally and extending it to wire fraud statute); see also Evans v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . . we rejected the Government's contention that the federal mail fraud statute . . . protected the citizenry's 'intangible right' to good government . . . . ") (Thomas, J., dissenting).
In response to McNally, Congress passed Section 1346 of Title 18, United States Code, which provides that "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."
Section 1346, which became effective November 18, 1988, seemed to resolve the intangible rights issue. See Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf. United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto concerns bar the application of section 1346 to pre-1988 conduct). In United States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for rehearing en banc pending, however, the court concluded that the wording of § 1346, "simply does not effect a change in the portion of the McNally opinion which held that the mail fraud statute does not reach 'schemes to defraud citizens of their intangible rights to honest and impartial government.'"
Tangible Versus Intangible Property Rights
In Carpenter, 484 U.S. 19, 25 (1987), the Court confirmed that "McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights." The Court held that the intangible nature of "confidential business information" does not make it any less "property" protected by the mail and wire fraud statutes. Id. Carpenter accordingly distinguished intangible property rights, which were still protected by the mail and wire fraud statutes, and intangible non-property rights, which were not protected. Cf. United States v. Lemire, 720 F.2d 1327, 1336 (D.C. Cir. 1983) ("[A]lthough the scheme to defraud must threaten some cognizable harm to its target, that harm need not be a deprivation of tangible property or money; criminal fraud encompasses schemes to defraud persons of significant intangibles as well."), cert. denied, 467 U.S. 1226 (1984).
QUERY: Whether interests such as contract rights, licenses, permits, trade secrets, franchises, government grants, goodwill, market share, etc., are intangible or tangible property rights that can be the subject of a mail or wire fraud violation. See, e.g., Carpenter, 484 U.S. at 25 (suggesting that contractual right to honest and faithful services is too ethereal in itself to fall within the protection of the mail fraud statute); United States v. DeFries, 43 F.3d 707, 709-11 (D.C. Cir. 1995) (union ballots are tangible property); United States v. Henry, 29 F.3d 112, 114-15 (3d Cir. 1994) (fair bidding opportunity is not a property right); United States v. F.J. Vollmer & Co., 1 F.3d 1511, 1521 (7th Cir. 1993) ("It is well established that the government's regulatory interests are not protected by the mail fraud statute.") (citing cases concerning licenses and permits), cert. denied, 114 S.Ct. 688 (1994); United States v. Loney, 959 F.2d 1332, 1336 (5th Cir. 1992) (flight award coupons are property); United States v. Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) (a FHA insurance commitment, by which the Government promises to pay the lender if the borrower defaults on the loan, is a "property interest," not an "intangible right" because it involves the Government's "control over how its money [is] spent."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991). The United States Court of Appeals for the District of Columbia's decision in DeFries provides a brief survey of cases finding property interests in permits, city liquor licenses, medical licenses and other items. See generally, 43 F.3d at 709-10 and n. 2; see also Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 706-11 (1994) (discussing "traditional frauds" and "frauds involving intangible rights").
QUERY: How to determine whether an interest is property? See, e.g., United States v. D'Amato, 39 F.3d 1249, 1258 (2d Cir. 1994) (shareholder's property rights to information are defined by state law and the law of fraud); cf. Henry, 29 F.3d at 115 ("[T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right."); see also Eilers & Silikovitz, 31 Am. Crim. L. Rev. at 706 n. 19 (case cited).
Fiduciary Duty
QUERY: Whether a fiduciary duty or relationship is a necessary ingredient to frauds relating to intangible property rights. See generally Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 706 n. 19 (1994) ("Unlike traditional frauds which may arise regardless of the relationship between the defendant and the victim, frauds related to intangible rights stem from a fiduciary relationship between the defendant and the defrauded party or entity."). "At the core of the judicially defined 'scheme to defraud' is the notion of a trust owed to another and a subsequent breach of that trust." United States v. Lemire, 720 F.2d 1327, 1335 (D.C. Cir. 1983) ("But '[n]ot every breach of a fiduciary duty works a criminal fraud.'") (quoting United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827 (1973)), cert. denied, 467 U.S. 1226 (1984). But cf. United States v. Sawyer, 878 F. Supp. 279, 288-90 (D. Mass. 1995) (mail fraud statutes do not require that a public fiduciary be a participant in the scheme). It may follow that to defraud one of the "right to honest services" would generally require a fiduciary relationship that creates the right to provide or protect honest services. It does not necessarily follow, however, that the existence or protection of an intangible property right must depend upon the existence of a fiduciary relationship or duty. Nonfiduciaries can steal, embezzle and defraud others of property interests, regardless of whether the property interest is tangible or intangible. Cf. United States v. Allen, 554 F.2d 398, 410 (10th Cir.) ("While the existence of a fiduciary duty is relevant and an ingredient in some mail fraud prosecutions, . . . it is not an essential in all such cases.") (citations omitted), cert. denied, 434 U.S. 836 (1977); Eilers & Silikovitz, 31 Am. Crim. L. Rev. at 711 ("There is some debate in the Circuit Courts about whether intangible rights can be violated if they are not premised upon fiduciary duty.").
Courts have held nonfiduciaries criminally liable for frauds related to intangible rights when a co-schemer or co-conspirator was a fiduciary. See United States v. Alexander, 741 F.2d 962, 964 (7th Cir. 1984) (an intangible rights scheme is cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity), overruled on other grounds by, United States v. Ginsburg, 773 F.2d 798 (7th Cir. 1985), cert. denied, 475 U.S. 1011 (1986); see also Sawyer, 878 F. Supp. at 289 (describing situation of nonfiduciary) (citing United States v. Margiotta, 688 F.2d 108, 121-23 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983), and Alexander, 741 F.2d at 964).
Intent to Defraud
The government must prove that the defendant had the specific intent to defraud. See United States v. Diggs, 613 F.2d 988, 997 (D.C. Cir. 1979) ("Because only 'a scheme to defraud' and not actual fraud is required, proof of fraudulent intent is critical."), cert. denied, 446 U.S. 982 (1980); see also United States v. Costanzo, 4 F.3d 658, 664 (8th Cir. 1993) (intent is an essential element, inquiry is whether defendants intended to defraud); United States v. Porcelli, 865 F.2d 1352, 1358 (2d Cir.) (specific intent requires intent to defraud, not intent to violate the statute), cert. denied, 493 U.S. 810 (1989); cf. United States v. Reid, 533 F.2d 1255, 1264 n. 34 (D.C. Cir. 1976) ("Proof that someone was actually defrauded is unnecessary simply because the critical element in a 'scheme to defraud' is 'fraudulent intent,' Durland v. United States, 161 U.S. 306 . . . (1896), and therefore the accused need not have succeeded in his scheme to be guilty of the crime."); United States v. Bailey, 859 F.2d 1265, 1273 (7th Cir. 1988) (court held that there must be sufficient evidence that the defendant acted with intent to defraud, that is, "willful participation in [the] scheme with knowledge of its fraudulent nature and with intent that these illicit objectives be achieved." (quoting United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds by, United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984)), cert denied, 488 U.S. 1010 (1989).
Proof of Fraudulent Intent
"The requisite intent under the federal mail and wire fraud statutes may be inferred from the totality of the circumstances and need not be proven by direct evidence." United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979), cert. denied, 445 U.S. 918 (1980). Thus, intent can be inferred from statements and conduct. United States v. Cusino, 694 F.2d 185, 187 (9th Cir. 1982) (citing United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979)), cert. denied, 461 U.S. 932 (1983). Impression testimony, that is, testimony of victims as to how they had been misled by defendants, is admissible to show an intent to defraud. See Phillips v. United States, 356 F.2d 297, 307 (9th Cir. 1965), cert. denied, 384 U.S. 952 (1966). Also consider complaint letters received by defendants as relevant to the issue of intent to defraud. The inference might be drawn that, since the defendant knew victims were being misled by solicitation literature and other representations, the continued operation of the business despite this knowledge showed the existence of a scheme to defraud.
Fraudulent intent is shown if a representation is made with reckless indifference to its truth or falsity. Cusino, 694 F.2d at 187. In addition, "[f]raudulent intent may be inferred from the modus operandi of the scheme." United States v. Reid, 533 F.2d 1255, 1264 n. 34 (D.C. Cir. 1976) ("[T]he purpose of the scheme 'must be to injure, which doubtless may be inferred when the scheme has such effect as a necessary result of carrying it out.") (quoting United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-81 (2d Cir. 1970) (quoting Horman v. United States, 116 F. 350, 352 (6th Cir.), cert. denied, 187 U.S. 641 (1902))). "Of course proof that someone was actually victimized by the fraud is good evidence of the schemer's intent." Id. (quoting Regent Office Supply Co., 421 F.2d at 1180-81). In United States v. D'Amato, the court explained the government's burden of proving fraudulent intent as follows:
The scheme to defraud need not have been successful or complete. Therefore, the victims of the scheme need not have been injured. However, the government must show "that some actual harm or injury was contemplated by the schemer." Because the defendant must intend to harm the fraud's victims, "[m]isrepresentations amounting only to a deceit are insufficient to maintain a mail or wire fraud prosecution." "Instead, the deceit must be coupled with a contemplated harm to the victim." In many cases, this requirement poses no additional obstacle for the government. When the "necessary result" of the actor's scheme is to injure others, fraudulent intent may be inferred from the scheme itself. Where the scheme does not cause injury to the alleged victim as its necessary result, the government must produce evidence independent of the alleged scheme to show the defendant's fraudulent intent.
39 F.3d 1249, 1257 (2d Cir. 1994) (citations and footnote omitted) (holding that the government failed to produce legally sufficient evidence of criminal intent).
Use of Mailings and Wires in Furtherance of the Execution of the Scheme
"The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law." United States v. Schmuck, 489 U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88, 95 (1944)); accord United States v. Coachman, 727 F.2d 1293, 1302 n. 43 (D.C. Cir. 1984) ("The offense of mail fraud demands proof of a scheme to defraud which, at some point, is intentionally furthered by use of the mails.").
"It is not necessary that the scheme contemplate the use of the mails as an essential element." Pereira v. United States, 347 U.S. 1, 8 (1954); Durland v. United States, 161 U.S. 306, 313 (1896) (proof of specific intent to use the mails on the part of defendants need not be proven). "It is sufficient for the mailing to be 'incident to an essential part of the scheme,' . . . or 'a step in [the] plot' . . . . " Schmuck, 489 U.S. at 710-11 (citations omitted); cf. United States v. Diggs, 613 F.2d 988, 998 (D.C. Cir.) ("[A]lthough the schemer need not 'contemplate the use of the mails as an essential element,' the mailings must be sufficiently closely related to [the] scheme to bring his conduct within the statute.") (footnote omitted), cert. denied, 446 U.S. 982 (1980); United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979) ("For conviction under the mail fraud statute, the mails must be used 'for the purpose of executing' the fraudulent scheme, and not merely 'as a result of' such scheme.") (quoting Kann, 323 U.S. 88), cert. denied, 445 U.S. 918 (1980).
As in the case of mail fraud, a wire transmission may be considered to be for the purpose of furthering a scheme to defraud if the transmission is incident to the accomplishment of an essential part of the scheme. United States v. Mann, 884 F.2d 532, 536 (10th Cir. 1984). Moreover, it is not necessary to show that the defendant directly participated in the transmission, where it is established that the defendant caused the transmission, and that such use was the foreseeable result of his acts. United States v. Gill, 909 F.2d 274, 277-78 (7th Cir. 1990); United States v. Jones, 554 F.2d 251, 253 (5th Cir.), cert. denied, 434 U.S. 866 (1977) (cases cited); United States v. Wise, 553 F.2d 1173 (8th Cir. 1977).
The gist of the offenses is not the scheme to defraud, but the use of the mails or interstate wire communication. See United States v. Garland, 337 F. Supp. 1, 3 (N.D. Ill. 1971); see also United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("The use of the post office establishment in the execution of the alleged scheme to obtain money by false pretenses is the gist of the offense which the statute denounces, and not the scheme to defraud.") (quoting Cochran v. United States, 41 F.2d 193, 197 (8th Cir. 1930)), cert. denied, 116 S.Ct. 748 and 116 S.Ct. 1044 (1996); United States v. Lebovitz, 669 F.2d 894, 898 (3d Cir.) ("The gist of the offense of mail fraud is the use of mails by someone to carry out some essential element of the fraudulent scheme or artifice."), cert. denied, 456 U.S. 929 (1982). Accordingly, each use of the mails (in the case of mail fraud) and each separate wire communication (in the case of wire fraud) constitutes a separate offense, i.e., each mailing and/or wire transmission can constitute a separate count in the indictment. See, e.g., United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (mail fraud); United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.) (each use of mails is separate offense), cert. denied, 506 U.S. 1035 (1992); United States v. Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987) (wire fraud).
Proof of Mailings and Transmissions
The mailing or wire communication may be proven by circumstantial evidence. See, e.g., United States v. Griffith, 17 F.3d 865, 874 (6th Cir.), cert. denied, 115 S.Ct. 149 (1994); United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986) (mailings performed in the course of the bank's customary practices) (citing United States v. Ledesma, 632 F.2d 670, 675 (7th Cir.), cert. denied, 449 U.S. 998 (1980)); United States v. Brooks, 748 F.2d 1199, 1202-03 (7th Cir. 1984) (introduction of envelope). But see United States v. Hannigan, 27 F.3d 890, 895 (3d Cir. 1994) (defendant's statement that he received check was insufficient to prove check was sent through the mails).
"To constitute a violation of [§ 1341] . . ., it is not necessary to show that [defendants] actually mailed . . . anything themselves; it is sufficient if they caused it to be done. Pereira v. United States, 347 U.S. 1, 8 (1954) (citing 18 U.S.C. (Supp. V) § 2(b)); United States v. Kenofskey, 243 U.S. 440, 443 (1917) ("Cause" is used "in its well-known sense of bringing about . . . ."); accord United States v. Diggs, 613 F.2d 988, 998 (D.C. Cir.) ("One must 'cause' the mails to be used" to satisfy the element of "use of the United States mails 'for the purpose of executing the scheme.'") (quoting United States v. Maze, 414 U.S. 395, 400 (1974) (quoting Kann v. United States, 323 U.S. 88, 94 (1944), cert. denied, 446 U.S. 982 (1980). The government need show only that the defendant "caused" the mailing by acting "with knowledge that the use of the mails follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended." Pereira, 347 U.S. at 8-9.
"'[I]nnocent' mailings - ones that contain no false information - may supply the mailing element." United States v. Schmuck, 489 U.S. 705, 715 (1989) (citing Parr v. United States, 363 U.S. 370, 390 (1960)). Moreover, the elements of mail fraud may be satisfied where the mailings have been routine. Mailings that may lead to the uncovering of the fraudulent scheme may also supply the mailing element of the mail fraud offense. Id. ("The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the fraud.").
Conspiracy to Violate the Mail Fraud or Wire Fraud Statutes
Where a scheme and artifice to defraud is shared by two or more, it becomes a conspiracy to defraud. The essential elements of conspiracy to commit mail fraud or wire fraud in violation of 18 U.S.C. § 371, are (1) an agreement between two or more persons; (2) to commit mail fraud or wire fraud; and (3) an overt act committed by one of the conspirators in furtherance of the conspiracy. See United States v. Brumley, 79 F.3d 1430, 1442 (5th Cir. 1996) (citing United States v. Hatch, 926 F.2d 387, 393 (5th Cir.), cert. denied, 500 U.S. 943 (1991)); United States v. Massey, 827 F.2d 995, 1001 (5th Cir. 1987); United States v. Gordon, 780 F.2d 1165, 1170 (5th Cir. 1986)). "Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense." Massey, 827 F.2d at 1001 (quoting Ingram v. United States, 360 U.S. 672, 678 (1959)).
As in any conspiracy, it is sufficient that the defendant knowingly joined the conspiracy in which wire fraud or mail fraud was a foreseeable act in furtherance of the conspiracy. United States v. Leahy, 82 F.3d 624 (5th Cir. 1996) (citing United States v. Basey, 816 F.2d 980, 997 (5th Cir. 1987) (holding that once a defendant's knowing participation in a conspiracy has been established, "the defendant is deemed guilty of substantive acts committed in furtherance of the conspiracy by any of his criminal partners")).
Venue in Mail Fraud
Generally, 18 U.S.C. § 3237(a) provides that in cases where the offense was begun in one district and completed in another, venue may be laid in any district through which the offense was continued.
Section 1341, however, has its own "built-in" venue provisions. The locus of the offense under section 1341 has been carefully specified; and only the acts of "placing", "taking" and "causing to be delivered" at a specified place have been penalized. Venue should therefore be placed according to the specific prohibitions of section 1341, irrespective of section 3237(a). See Travis v. United States, 364 U.S. 631, 636-37 (1961) ("[V]enue should not be made to depend upon the chance use of the mails, when Congress has so carefully indicated the locus of the crimes."). The locus for mail fraud prosecutions is specifically set forth in section 1341; since Congress has "otherwise expressly provided," section 3237 is inapplicable to mail fraud.
Accordingly, venue must be charged in either (1) the district in which the letter was placed in the mail by the defendant; (2) the district in which the defendant took or received the letter from the mails; or (3) the district in which the defendant knowingly caused a letter to be delivered according to the direction thereon. Hagner v. United States, 285 U.S. 427 (1932)); see also United States v. Turley, 891 F.2d 57, 60 (3d Cir. 1989) (government conceded that section 3237 is not applicable to mail fraud).
Several decisions, citing as authority the provisions of section 3237(a), have held that venue for mail fraud prosecutions also lies in any district through which the count letter passed. Section 3237(a) must, however, be read in light of the constitutional requirements and the explicit provisions of section 1341.
Defenses—Statute of Limitations
The statute of limitations for mail fraud and wire fraud prosecutions is five years (18 U.S.C. § 3282), except for mail and wire fraud schemes that affect a financial institution, in which case the statute is ten years (18 U.S.C. § 3293).
COMMENT: Consider that a scheme may extend back beyond the limitations period; the gist of the offense is the use of the mails, and if the prohibited use of the mails was within the period, the prosecution is timely. See O. Obermaier and R. Morvillo, White Collar Crime: Business and Regulatory Offenses, § 9.04[5], at 9-67 (Rel. 2, 1991) (citing cases); cf. United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994) (mail fraud scheme may continue after mailing). That a scheme may extend back beyond the limitation period does not preclude prosecution of an offense committed in furtherance of the scheme within the period.
Defenses—Good Faith
Good faith is recognized as a defense to a charge of mail or wire fraud. See, e.g., United States v. Casperson, 773 F.2d 216, 223 (8th Cir. 1985). For a discussion of the defense of good faith and the entitlement of jury instructions on this issue, see Green v. United States, 474 U.S. 925 (1985); see also Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 719 (1994) (and cases cited).
Drafting a Mail Fraud and/or Wire Fraud Indictment
The Criminal Division has published a collection of indictment forms, Drafting Indictments most recently updated in March, 1995. These forms can be conveniently accessed and saved as word processing documents using USABook:
Mail Fraud
Mail Fraud Scheme/Artifice
Sufficiency of Indictment—Generally
Generally, Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires an indictment to provide "a plain, concise and definite written statement of the essential facts constituting the offense charged." United States v. Yefsky, 994 F.2d 885, 893 (1st Cir. 1993) ("The Supreme Court has instructed that an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy.") (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); see also Collins v. Markley, 346 F.2d 230, 232 (7th Cir.) (en banc) ("The sufficiency of an indictment is to be measured by certain guide lines. First, the indictment standing alone must contain the elements of the offense intended to be charged, and it must be sufficient to apprise the accused of the nature of the offense. Second, after conviction, the record of the case must be sufficient so that the accused can plead the judgment in bar of any subsequent prosecution for the same offense."), cert. denied, 382 U.S. 946 (1965).
Accordingly, a mail fraud or wire fraud indictment should contain a reasonably detailed description of the particular scheme the defendant is charged with devising to ensure that the defendant has sufficient notice of the nature of the offense. See Yefsky, 994 F.2d at 893 ("The indictment may incorporate the words of the statute to set forth the offense, but the statutory language '"must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."'") (quoting Hamling, 418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S. 483, 487 (1888))); cf. United States v. Nance, 533 F.2d 699, 702 (D.C. Cir. 1976) (noting with approval mail fraud count that specifies misrepresentations); United States v. Curtis, 506 F.2d 985, 990 (10th Cir. 1974) (citations omitted) (dismissing mail fraud indictment that excludes false pretenses).
In Yefsky, the court held that the indictment was defective in that it did not provide the defendant with adequate notice of the charge (conspiracy to commit mail fraud) against him. 994 F.2d at 993 ("Where guilt depends so crucially upon . . . a specific identification of fact, . . . cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.") (citing Hamling, 418 U.S. at 118).
In Curtis, the court stated the following in considering the sufficiency of the allegations contained in an indictment charging mail fraud:
Mere evidential matters or detail more appropriate in bills of particular need not be pleaded in an indictment based upon 1341. [citations omitted] But as these cases demonstrate, some substantial indication of the nature or character of any scheme or artifice to defraud, or to obtain money or property by means of false pretenses, representations or promises is requisite. And it is not sufficient in this regard to merely plead the statutory language. [citations omitted] A reference to the cases cited first above will disclose that in each instance the nature of the schemes or artifices is identified or described, including the particular pretenses, representations or promises claimed to have been false.
506 F.2d at 989-90 (holding that the indictment, which pleaded little more than the statutory language without any fair indication of the nature or character of the scheme or artifice relied upon, or the false pretenses, misrepresentations or promises forming a part of it, was fatally defective); see also United States v. Crummer, 151 F.2d 958 (10th Cir. 1945) ("While the particulars of the scheme are matters of substance and therefore must be described with a degree of certainty sufficient to show its existence of character, and fairly to acquaint the defendant with the particular fraudulent scheme charged against him, still the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.") (allegations of the scheme held to be sufficient), cert. denied, 327 U.S. 785 (1946); cf. United States v. Azad, 809 F.2d 291, 295 (6th Cir. 1986) ("What distinguishes this indictment from the indictment found defective in [Curtis], . . . is the clear and specific description of the fraudulent scheme found in the present indictment. The indictment before us does provide some 'substantial indication of the nature or character' of the scheme involved, and 'the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.'" ) (quoting Curtis, 506 F.2d at 990), cert. denied, 481 U.S. 1004 (1987); United States v. Adamo, 534 F.2d 31, 35 (3d Cir.) ("The Curtis indictment was so vague that trial might have proceeded upon an entirely different concept of the scheme than that contemplated by the grand jury when it returned the indictment. By contrast, the indictment in this case explicitly outlines the elements of the fraudulent plan."), cert. denied, 429 U.S. 841 (1976).
Sufficiency of Indictment—Victims and Loss
Victims of the fraud do not have to be identified by name in the indictment. United States v. Mizyed, 927 F.2d 979 (7th Cir.), cert. denied, 500 U.S. 937 (1991). Moreover, actual monetary loss need not be alleged. United States v. Barber, 881 F.2d 345, 348-49 (7th Cir. 1989) ("It is true that the indictment does not allege an actual monetary or economic loss to any insurance company. However, it is not necessary that an indictment charging mail fraud contain such an allegation."), cert. denied, 495 U.S. 922 (1990); see also United States v. Ginsburg, 909 F.2d 982, 988 n. 8 (7th Cir. 1990) ("McNally does not require that actual loss of money or property be alleged in the indictment."); United States v. Bucey, 876 F.2d 1297, 1311 (7th Cir.) ("[S]ince the mail fraud statute punishes the scheme to defraud, this court has reiterated on numerous occasions that the ultimate success of the fraud and the actual defrauding of a victim are not necessary prerequisites to a successful mail fraud prosecution."), cert. denied, 493 U.S. 1004 (1989).
Sufficiency of Indictment—Mailings or Transmissions in Furtherance of Scheme
"The Government need not allege the subordinate evidentiary facts by which it intends to prove the 'in furtherance' element of the crime charged, and an indictment setting out the mailings charged and alleging that they were in furtherance of the scheme should not be dismissed as insufficient on its face unless there is no conceivable evidence that the Government could produce at trial to substantiate its 'in furtherance' allegation." United States v. Castor, 558 F.2d 379, 385 (7th Cir. 1977), cert. denied, 434 U.S. 1010 (1978). In Castor, the court observed the following concerning the requirement of alleging that the mailings were in furtherance of the scheme:
The question is not whether the indictment particularly alleges sufficient facts from which a jury could find that the mailings charged were in furtherance of the scheme, but rather whether the Government conceivably could produce evidence at trial showing that the designated mailings were for the purposes of executing the scheme. United States v. Sampson, 371 U.S. 75, 76, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The resolution of the question of whether the mailings alleged were in furtherance of the scheme must await trial "unless it so convincingly appears on the face of the indictment that as a matter of law there need be no necessity for such delay." United States v. Feinberg, 50 F. Supp. 976, 977 (E.D.N.Y. 1973), aff'd, 140 F.2d 592 (2d Cir.), cert. denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1944).
Id. at 384-85.
Sufficiency of Indictment—Separate Offenses
Each mailing or transmission in furtherance of the scheme and artifice to defraud is a separate offense. See, e.g., United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994)(mail fraud); United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.)(each use of mails is separate offense), cert. denied, 506 U.S. 1035 (1992); United States v. Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987)(wire fraud). Accordingly, proper draftsmanship requires that only one mailing or transmission should be alleged in each count. Otherwise, the count may be duplicitous.
Because descriptions of the scheme are frequently quite lengthy, it is suggested that those descriptive paragraphs set out in full in one count be adopted and incorporated into another count by suitable reference pursuant to the provision of Rule 7(c), Federal Rules of Criminal Procedure.
Sufficiency of the Indictment—Special Considerations
Take care to charge the proper method of violation of the statute! For example, if the letter is mailed to the district of indictment from another district, be sure to charge a taking from the mails, or delivery according to the direction thereon, rather than a placing in the mail. Conversely, charge a placing in the mail in the district of indictment of a letter addressed to someone outside that district. See Hagner v. United States, 285 U.S. 427 (1932) (indictment loosely and inartfully drawn).
Statement of Policy concerning Venue in Mail Fraud Prosecutions
Department of Justice policy opposes mail fraud venue based solely on the mail matter passing through a jurisdiction.
18 U.S.C. Section 1341—Elements of Mail Fraud
"There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
Knowingly and Willfully
The prohibition of 18 U.S.C. § 1001 requires that the false statement, concealment or cover up be "knowingly and willfully" done, which means that "The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but § 1001 does not require an intent to defraud -- that is, the intent to deprive someone of something by means of deceit." United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir.), cert. denied, 447 U.S. 907 (1980). The government may prove that a false statement was made "knowingly and willfully" by offering evidence that defendants acted deliberately and with knowledge that the representation was false. See United States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990). The jury may conclude from a plan of elaborate lies and half-truths that defendants deliberately conveyed information they knew to be false to the government. Id. at 214-15.
As used in the statute, the term "knowingly" requires only that the defendant acted with knowledge of the falsity. See United States v. Lange, 528 F.2d 1280, 1287-89 (5th Cir. 1976). As in other situations, to commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason. See Fifth Circuit Pattern Jury Instructions, § 1.35 (1990). Knowledge of the criminal statute governing the conduct is not required.
The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting "knowingly." United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).
A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).
The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done "willfully." See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).
Obstructing or Impairing Legitimate Government Activity
Under 18 U.S.C. § 371, the fraud or impairment of legitimate government activity may take any of several forms:
Bribery of a government employee, kickbacks to government employees or extortion of money or favors by government employees, misrepresentations of financial capability, alteration or falsification of official records, submission of false documents; and
Obstructing, in any manner, a legitimate governmental function.
18 U.S. Code § 1342 - Fictitious name or address
Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined under this title or imprisoned not more than five years, or both.
Prosecution Policy Relating to Mail Fraud and Wire Fraud
Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.
See also USAM 9-85.210 (requires prior consultation with the Public Integrity Section to use the mail or wire fraud statutes in the prosecution of election fraud cases).
Further guidance and legal analysis of issues surrounding the investigation and prosecution of frauds involving use of the mail or wire, in violation of Title 18, United States Code, Sections 1341 and 1343 can be found in the Criminal Resource Manual:
Investigative Authority
Primary investigative jurisdiction of possible violations of the mail and wire fraud statutes is vested in the Federal Bureau of Investigation. In some cases, complaints involving securities may be investigated by the Securities and Exchange Commission. In addition, the Postal Inspection Service of the United States Postal Service may initiate mail or wire fraud investigations. In both situations, the investigations are usually continued by the agency initiating the investigation. Reports of investigation are disseminated directly to the appropriate United States Attorney.
18 U.S.C. Section 1341—Elements of Mail Fraud
"There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
The Scheme and Artifice to Defraud
The wire fraud statute was patterned after the mail fraud statutes. United States v. Lemon, 941 F.2d 309, 316 (5th Cir. 1991); United States v. Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987). Thus, the same principles apply in defining "scheme to defraud" for mail and wire fraud prosecutions. See Carpenter v. United States, 484 U.S. 19, 25 n. 6 (1987) ("The mail and wire fraud statutes share the same language in relevant part, and accordingly we apply the same analysis to both sets of offenses here."); United States v. Lemire, 720 F.2d 1327, 1334-35 n. 6 (D.C. Cir. 1983) ("The requisite elements of 'scheme to defraud' under the wire fraud statute [§ 1343] and the mail fraud statute [§ 1341], are identical. Thus, cases construing mail fraud apply to the wire fraud statute as well."), cert. denied, 467 U.S. 1226 (1984).
The mail fraud and wire fraud statutes do not define the terms "scheme" or "artifice" and the courts have traditionally been reluctant to offer definitions of either term except in the broadest and most general terms. Lemire, 720 F.2d at 1335 ("Congress did not define 'scheme or artifice to defraud' when it first coined that phrase, nor has it since. Instead that expression has taken on its present meaning from 111 years of case law.").
The fraudulent aspect of the scheme to defraud is to be measured by nontechnical standards and is not restricted by any common-law definition of false pretenses. "[T]he words 'to defraud' in the mail fraud statute have the 'common understanding' of '"wrongdoing one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, chicane, or overreaching."'" Carpenter, 484 U.S. at 27 (quoting McNally v. United States, 483 U.S. 350, 358 (1987) (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924))). "The concept of 'fraud' includes the act of embezzlement, which is '"the fraudulent appropriation to one's own use of the money or goods entrusted to one's own care by another."'" Id. (quoting Grin v. Shine, 187 U.S. 181, 189 (1902)).
No Loss or Gullible Victims
"It is the scheme to defraud and not actual fraud that is required." United States v. Reid, 533 F.2d 1255, 1264 (D.C. Cir. 1976).
"No particular type of victim is required . . . nor need the scheme have succeeded." United States v. Coachman, 727 F.2d 1293, 1302-03 n. 43 (D.C. Cir. 1984).
No actual loss to the victims is required. See United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.)
"The fraud statutes speak alternatively of devising or intending to devise a scheme to defraud and do not require that the deception bear fruit for the wrongdoer or cause injury to the intended victim as a prerequisite to successful prosecution. [S]uccess of the scheme and loss by a defrauded person are not essential elements of the crime under 18 U.S.C. §§ 1341, 1343 . . . .", cert. denied, 429 U.S. 924 (1976); see also United States v. Jordan, 626 F.2d 928, 931 (D.C. Cir. 1980)
"The amount of money realized as a result of the scheme is not an essential element of mail fraud. It was not even necessary to prove that the scheme succeeded."
For a discussion of fraud loss computation in sentencing see Guidelines Sentencing (Federal Judicial Center, 1997), Section II.D.2. Offense Involving Fraud and Deceit.
"[I]t makes no difference whether the persons the scheme is intended to defraud are gullible or skeptical, dull or bright . . . . " United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990) (quoting United States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S. 919 (1980)).
"[T]he monumental credulity of the victim is no shield for the accused . . ." Id. (quoting Deaver v. United States, 155 F.2d 740, 744-45 (D.C. Cir.), cert. denied, 329 U.S. 766 (1946)); cf. Pollack, 534 F.2d at 971 (To hold that actual loss to victim is required "would lead to the illogical result that the legality of a defendant's conduct would depend on his fortuitous choice of a gullible victim.") (quoted in Maxwell, 920 F.2d at 1036).
Proof of Scheme and Artifice to Defraud
To sustain a conviction the government must prove the existence of a scheme; it is not required, however, to prove all details or all instances of allegedly illicit conduct. See, e.g., United States v. Stull, 743 F.2d 439, 442 n. 2 (6th Cir. 1984) ("It is well established that proof of every allegation is not required in order to convict; the government need only prove that the scheme to defraud existed."), cert. denied, 470 U.S. 1062 (1985); United States v. Halbert, 640 F.2d 1000, 1008 (9th Cir. 1981) ("[T]he Government need not prove every misrepresentation charged conjunctively in the indictment."); United States v. Jordan, 626 F.2d 928, 930 (D.C. Cir. 1980) ("The Government is not required to prove the details of a scheme; it is, however, required to prove beyond a reasonable doubt . . . that the defendant . . . willfully and knowingly devised a scheme or artifice to defraud . . . .") (quoting with approval the trial court's instruction on § 1341); United States v. Amrep Corp., 560 F.2d 539, 546 (2d Cir. 1977)
("A scheme to defraud may consist of numerous elements, no particular one of which need be proved if there is sufficient overall proof that the scheme exists."), cert. denied, 434 U.S. 1015 (1978); Anderson v. United States, 369 F.2d 11, 15 (8th Cir. 1966) (all instances of illicit conduct need not be proved to sustain a conviction), cert. denied, 386 U.S. 976 (1967).
"All that is required is that [the defendant has] knowingly and willingly participated in the scheme; she need not have performed every key act herself." United States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990). The "evidence need only show that defendant was a 'knowing and active participant' in scheme to defraud and that scheme involved interstate wire communications." Id. (quoting United States v. Wiehoff, 748 F.2d 1158, 1161 (7th Cir. 1984)).
McNally and Intangible Rights
In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" . . . and that the statute is "limited in scope to the protection of property rights." See Carpenter v. United States, 484 U.S. 19, 25 (1987) (quoting McNally and extending it to wire fraud statute); see also Evans v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . . we rejected the Government's contention that the federal mail fraud statute . . . protected the citizenry's 'intangible right' to good government . . . . ") (Thomas, J., dissenting).
In response to McNally, Congress passed Section 1346 of Title 18, United States Code, which provides that "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."
Section 1346, which became effective November 18, 1988, seemed to resolve the intangible rights issue. See Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf. United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto concerns bar the application of section 1346 to pre-1988 conduct). In United States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for rehearing en banc pending, however, the court concluded that the wording of § 1346, "simply does not effect a change in the portion of the McNally opinion which held that the mail fraud statute does not reach 'schemes to defraud citizens of their intangible rights to honest and impartial government.'"
Tangible Versus Intangible Property Rights
In Carpenter, 484 U.S. 19, 25 (1987), the Court confirmed that "McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights." The Court held that the intangible nature of "confidential business information" does not make it any less "property" protected by the mail and wire fraud statutes. Id. Carpenter accordingly distinguished intangible property rights, which were still protected by the mail and wire fraud statutes, and intangible non-property rights, which were not protected. Cf. United States v. Lemire, 720 F.2d 1327, 1336 (D.C. Cir. 1983) ("[A]lthough the scheme to defraud must threaten some cognizable harm to its target, that harm need not be a deprivation of tangible property or money; criminal fraud encompasses schemes to defraud persons of significant intangibles as well."), cert. denied, 467 U.S. 1226 (1984).
QUERY: Whether interests such as contract rights, licenses, permits, trade secrets, franchises, government grants, goodwill, market share, etc., are intangible or tangible property rights that can be the subject of a mail or wire fraud violation. See, e.g., Carpenter, 484 U.S. at 25 (suggesting that contractual right to honest and faithful services is too ethereal in itself to fall within the protection of the mail fraud statute); United States v. DeFries, 43 F.3d 707, 709-11 (D.C. Cir. 1995) (union ballots are tangible property); United States v. Henry, 29 F.3d 112, 114-15 (3d Cir. 1994) (fair bidding opportunity is not a property right); United States v. F.J. Vollmer & Co., 1 F.3d 1511, 1521 (7th Cir. 1993) ("It is well established that the government's regulatory interests are not protected by the mail fraud statute.") (citing cases concerning licenses and permits), cert. denied, 114 S.Ct. 688 (1994); United States v. Loney, 959 F.2d 1332, 1336 (5th Cir. 1992) (flight award coupons are property); United States v. Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) (a FHA insurance commitment, by which the Government promises to pay the lender if the borrower defaults on the loan, is a "property interest," not an "intangible right" because it involves the Government's "control over how its money [is] spent."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991). The United States Court of Appeals for the District of Columbia's decision in DeFries provides a brief survey of cases finding property interests in permits, city liquor licenses, medical licenses and other items. See generally, 43 F.3d at 709-10 and n. 2; see also Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 706-11 (1994) (discussing "traditional frauds" and "frauds involving intangible rights").
QUERY: How to determine whether an interest is property? See, e.g., United States v. D'Amato, 39 F.3d 1249, 1258 (2d Cir. 1994) (shareholder's property rights to information are defined by state law and the law of fraud); cf. Henry, 29 F.3d at 115 ("[T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right."); see also Eilers & Silikovitz, 31 Am. Crim. L. Rev. at 706 n. 19 (case cited).
Fiduciary Duty
QUERY: Whether a fiduciary duty or relationship is a necessary ingredient to frauds relating to intangible property rights. See generally Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 706 n. 19 (1994) ("Unlike traditional frauds which may arise regardless of the relationship between the defendant and the victim, frauds related to intangible rights stem from a fiduciary relationship between the defendant and the defrauded party or entity."). "At the core of the judicially defined 'scheme to defraud' is the notion of a trust owed to another and a subsequent breach of that trust." United States v. Lemire, 720 F.2d 1327, 1335 (D.C. Cir. 1983) ("But '[n]ot every breach of a fiduciary duty works a criminal fraud.'") (quoting United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827 (1973)), cert. denied, 467 U.S. 1226 (1984). But cf. United States v. Sawyer, 878 F. Supp. 279, 288-90 (D. Mass. 1995) (mail fraud statutes do not require that a public fiduciary be a participant in the scheme). It may follow that to defraud one of the "right to honest services" would generally require a fiduciary relationship that creates the right to provide or protect honest services. It does not necessarily follow, however, that the existence or protection of an intangible property right must depend upon the existence of a fiduciary relationship or duty. Nonfiduciaries can steal, embezzle and defraud others of property interests, regardless of whether the property interest is tangible or intangible. Cf. United States v. Allen, 554 F.2d 398, 410 (10th Cir.) ("While the existence of a fiduciary duty is relevant and an ingredient in some mail fraud prosecutions, . . . it is not an essential in all such cases.") (citations omitted), cert. denied, 434 U.S. 836 (1977); Eilers & Silikovitz, 31 Am. Crim. L. Rev. at 711 ("There is some debate in the Circuit Courts about whether intangible rights can be violated if they are not premised upon fiduciary duty.").
Courts have held nonfiduciaries criminally liable for frauds related to intangible rights when a co-schemer or co-conspirator was a fiduciary. See United States v. Alexander, 741 F.2d 962, 964 (7th Cir. 1984) (an intangible rights scheme is cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity), overruled on other grounds by, United States v. Ginsburg, 773 F.2d 798 (7th Cir. 1985), cert. denied, 475 U.S. 1011 (1986); see also Sawyer, 878 F. Supp. at 289 (describing situation of nonfiduciary) (citing United States v. Margiotta, 688 F.2d 108, 121-23 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983), and Alexander, 741 F.2d at 964).
Intent to Defraud
The government must prove that the defendant had the specific intent to defraud. See United States v. Diggs, 613 F.2d 988, 997 (D.C. Cir. 1979) ("Because only 'a scheme to defraud' and not actual fraud is required, proof of fraudulent intent is critical."), cert. denied, 446 U.S. 982 (1980); see also United States v. Costanzo, 4 F.3d 658, 664 (8th Cir. 1993) (intent is an essential element, inquiry is whether defendants intended to defraud); United States v. Porcelli, 865 F.2d 1352, 1358 (2d Cir.) (specific intent requires intent to defraud, not intent to violate the statute), cert. denied, 493 U.S. 810 (1989); cf. United States v. Reid, 533 F.2d 1255, 1264 n. 34 (D.C. Cir. 1976) ("Proof that someone was actually defrauded is unnecessary simply because the critical element in a 'scheme to defraud' is 'fraudulent intent,' Durland v. United States, 161 U.S. 306 . . . (1896), and therefore the accused need not have succeeded in his scheme to be guilty of the crime."); United States v. Bailey, 859 F.2d 1265, 1273 (7th Cir. 1988) (court held that there must be sufficient evidence that the defendant acted with intent to defraud, that is, "willful participation in [the] scheme with knowledge of its fraudulent nature and with intent that these illicit objectives be achieved." (quoting United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds by, United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984)), cert denied, 488 U.S. 1010 (1989).
Proof of Fraudulent Intent
"The requisite intent under the federal mail and wire fraud statutes may be inferred from the totality of the circumstances and need not be proven by direct evidence." United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979), cert. denied, 445 U.S. 918 (1980). Thus, intent can be inferred from statements and conduct. United States v. Cusino, 694 F.2d 185, 187 (9th Cir. 1982) (citing United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979)), cert. denied, 461 U.S. 932 (1983). Impression testimony, that is, testimony of victims as to how they had been misled by defendants, is admissible to show an intent to defraud. See Phillips v. United States, 356 F.2d 297, 307 (9th Cir. 1965), cert. denied, 384 U.S. 952 (1966). Also consider complaint letters received by defendants as relevant to the issue of intent to defraud. The inference might be drawn that, since the defendant knew victims were being misled by solicitation literature and other representations, the continued operation of the business despite this knowledge showed the existence of a scheme to defraud.
Fraudulent intent is shown if a representation is made with reckless indifference to its truth or falsity. Cusino, 694 F.2d at 187. In addition, "[f]raudulent intent may be inferred from the modus operandi of the scheme." United States v. Reid, 533 F.2d 1255, 1264 n. 34 (D.C. Cir. 1976) ("[T]he purpose of the scheme 'must be to injure, which doubtless may be inferred when the scheme has such effect as a necessary result of carrying it out.") (quoting United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-81 (2d Cir. 1970) (quoting Horman v. United States, 116 F. 350, 352 (6th Cir.), cert. denied, 187 U.S. 641 (1902))). "Of course proof that someone was actually victimized by the fraud is good evidence of the schemer's intent." Id. (quoting Regent Office Supply Co., 421 F.2d at 1180-81). In United States v. D'Amato, the court explained the government's burden of proving fraudulent intent as follows:
The scheme to defraud need not have been successful or complete. Therefore, the victims of the scheme need not have been injured. However, the government must show "that some actual harm or injury was contemplated by the schemer." Because the defendant must intend to harm the fraud's victims, "[m]isrepresentations amounting only to a deceit are insufficient to maintain a mail or wire fraud prosecution." "Instead, the deceit must be coupled with a contemplated harm to the victim." In many cases, this requirement poses no additional obstacle for the government. When the "necessary result" of the actor's scheme is to injure others, fraudulent intent may be inferred from the scheme itself. Where the scheme does not cause injury to the alleged victim as its necessary result, the government must produce evidence independent of the alleged scheme to show the defendant's fraudulent intent.
39 F.3d 1249, 1257 (2d Cir. 1994) (citations and footnote omitted) (holding that the government failed to produce legally sufficient evidence of criminal intent).
Use of Mailings and Wires in Furtherance of the Execution of the Scheme
"The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law." United States v. Schmuck, 489 U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88, 95 (1944)); accord United States v. Coachman, 727 F.2d 1293, 1302 n. 43 (D.C. Cir. 1984) ("The offense of mail fraud demands proof of a scheme to defraud which, at some point, is intentionally furthered by use of the mails.").
"It is not necessary that the scheme contemplate the use of the mails as an essential element." Pereira v. United States, 347 U.S. 1, 8 (1954); Durland v. United States, 161 U.S. 306, 313 (1896) (proof of specific intent to use the mails on the part of defendants need not be proven). "It is sufficient for the mailing to be 'incident to an essential part of the scheme,' . . . or 'a step in [the] plot' . . . . " Schmuck, 489 U.S. at 710-11 (citations omitted); cf. United States v. Diggs, 613 F.2d 988, 998 (D.C. Cir.) ("[A]lthough the schemer need not 'contemplate the use of the mails as an essential element,' the mailings must be sufficiently closely related to [the] scheme to bring his conduct within the statute.") (footnote omitted), cert. denied, 446 U.S. 982 (1980); United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979) ("For conviction under the mail fraud statute, the mails must be used 'for the purpose of executing' the fraudulent scheme, and not merely 'as a result of' such scheme.") (quoting Kann, 323 U.S. 88), cert. denied, 445 U.S. 918 (1980).
As in the case of mail fraud, a wire transmission may be considered to be for the purpose of furthering a scheme to defraud if the transmission is incident to the accomplishment of an essential part of the scheme. United States v. Mann, 884 F.2d 532, 536 (10th Cir. 1984). Moreover, it is not necessary to show that the defendant directly participated in the transmission, where it is established that the defendant caused the transmission, and that such use was the foreseeable result of his acts. United States v. Gill, 909 F.2d 274, 277-78 (7th Cir. 1990); United States v. Jones, 554 F.2d 251, 253 (5th Cir.), cert. denied, 434 U.S. 866 (1977) (cases cited); United States v. Wise, 553 F.2d 1173 (8th Cir. 1977).
The gist of the offenses is not the scheme to defraud, but the use of the mails or interstate wire communication. See United States v. Garland, 337 F. Supp. 1, 3 (N.D. Ill. 1971); see also United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("The use of the post office establishment in the execution of the alleged scheme to obtain money by false pretenses is the gist of the offense which the statute denounces, and not the scheme to defraud.") (quoting Cochran v. United States, 41 F.2d 193, 197 (8th Cir. 1930)), cert. denied, 116 S.Ct. 748 and 116 S.Ct. 1044 (1996); United States v. Lebovitz, 669 F.2d 894, 898 (3d Cir.) ("The gist of the offense of mail fraud is the use of mails by someone to carry out some essential element of the fraudulent scheme or artifice."), cert. denied, 456 U.S. 929 (1982). Accordingly, each use of the mails (in the case of mail fraud) and each separate wire communication (in the case of wire fraud) constitutes a separate offense, i.e., each mailing and/or wire transmission can constitute a separate count in the indictment. See, e.g., United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (mail fraud); United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.) (each use of mails is separate offense), cert. denied, 506 U.S. 1035 (1992); United States v. Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987) (wire fraud).
Proof of Mailings and Transmissions
The mailing or wire communication may be proven by circumstantial evidence. See, e.g., United States v. Griffith, 17 F.3d 865, 874 (6th Cir.), cert. denied, 115 S.Ct. 149 (1994); United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986) (mailings performed in the course of the bank's customary practices) (citing United States v. Ledesma, 632 F.2d 670, 675 (7th Cir.), cert. denied, 449 U.S. 998 (1980)); United States v. Brooks, 748 F.2d 1199, 1202-03 (7th Cir. 1984) (introduction of envelope). But see United States v. Hannigan, 27 F.3d 890, 895 (3d Cir. 1994) (defendant's statement that he received check was insufficient to prove check was sent through the mails).
"To constitute a violation of [§ 1341] . . ., it is not necessary to show that [defendants] actually mailed . . . anything themselves; it is sufficient if they caused it to be done. Pereira v. United States, 347 U.S. 1, 8 (1954) (citing 18 U.S.C. (Supp. V) § 2(b)); United States v. Kenofskey, 243 U.S. 440, 443 (1917) ("Cause" is used "in its well-known sense of bringing about . . . ."); accord United States v. Diggs, 613 F.2d 988, 998 (D.C. Cir.) ("One must 'cause' the mails to be used" to satisfy the element of "use of the United States mails 'for the purpose of executing the scheme.'") (quoting United States v. Maze, 414 U.S. 395, 400 (1974) (quoting Kann v. United States, 323 U.S. 88, 94 (1944), cert. denied, 446 U.S. 982 (1980). The government need show only that the defendant "caused" the mailing by acting "with knowledge that the use of the mails follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended." Pereira, 347 U.S. at 8-9.
"'[I]nnocent' mailings - ones that contain no false information - may supply the mailing element." United States v. Schmuck, 489 U.S. 705, 715 (1989) (citing Parr v. United States, 363 U.S. 370, 390 (1960)). Moreover, the elements of mail fraud may be satisfied where the mailings have been routine. Mailings that may lead to the uncovering of the fraudulent scheme may also supply the mailing element of the mail fraud offense. Id. ("The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the fraud.").
Conspiracy to Violate the Mail Fraud or Wire Fraud Statutes
Where a scheme and artifice to defraud is shared by two or more, it becomes a conspiracy to defraud. The essential elements of conspiracy to commit mail fraud or wire fraud in violation of 18 U.S.C. § 371, are (1) an agreement between two or more persons; (2) to commit mail fraud or wire fraud; and (3) an overt act committed by one of the conspirators in furtherance of the conspiracy. See United States v. Brumley, 79 F.3d 1430, 1442 (5th Cir. 1996) (citing United States v. Hatch, 926 F.2d 387, 393 (5th Cir.), cert. denied, 500 U.S. 943 (1991)); United States v. Massey, 827 F.2d 995, 1001 (5th Cir. 1987); United States v. Gordon, 780 F.2d 1165, 1170 (5th Cir. 1986)). "Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense." Massey, 827 F.2d at 1001 (quoting Ingram v. United States, 360 U.S. 672, 678 (1959)).
As in any conspiracy, it is sufficient that the defendant knowingly joined the conspiracy in which wire fraud or mail fraud was a foreseeable act in furtherance of the conspiracy. United States v. Leahy, 82 F.3d 624 (5th Cir. 1996) (citing United States v. Basey, 816 F.2d 980, 997 (5th Cir. 1987) (holding that once a defendant's knowing participation in a conspiracy has been established, "the defendant is deemed guilty of substantive acts committed in furtherance of the conspiracy by any of his criminal partners")).
Venue in Mail Fraud
Generally, 18 U.S.C. § 3237(a) provides that in cases where the offense was begun in one district and completed in another, venue may be laid in any district through which the offense was continued.
Section 1341, however, has its own "built-in" venue provisions. The locus of the offense under section 1341 has been carefully specified; and only the acts of "placing", "taking" and "causing to be delivered" at a specified place have been penalized. Venue should therefore be placed according to the specific prohibitions of section 1341, irrespective of section 3237(a). See Travis v. United States, 364 U.S. 631, 636-37 (1961) ("[V]enue should not be made to depend upon the chance use of the mails, when Congress has so carefully indicated the locus of the crimes."). The locus for mail fraud prosecutions is specifically set forth in section 1341; since Congress has "otherwise expressly provided," section 3237 is inapplicable to mail fraud.
Accordingly, venue must be charged in either (1) the district in which the letter was placed in the mail by the defendant; (2) the district in which the defendant took or received the letter from the mails; or (3) the district in which the defendant knowingly caused a letter to be delivered according to the direction thereon. Hagner v. United States, 285 U.S. 427 (1932)); see also United States v. Turley, 891 F.2d 57, 60 (3d Cir. 1989) (government conceded that section 3237 is not applicable to mail fraud).
Several decisions, citing as authority the provisions of section 3237(a), have held that venue for mail fraud prosecutions also lies in any district through which the count letter passed. Section 3237(a) must, however, be read in light of the constitutional requirements and the explicit provisions of section 1341.
Defenses—Statute of Limitations
The statute of limitations for mail fraud and wire fraud prosecutions is five years (18 U.S.C. § 3282), except for mail and wire fraud schemes that affect a financial institution, in which case the statute is ten years (18 U.S.C. § 3293).
COMMENT: Consider that a scheme may extend back beyond the limitations period; the gist of the offense is the use of the mails, and if the prohibited use of the mails was within the period, the prosecution is timely. See O. Obermaier and R. Morvillo, White Collar Crime: Business and Regulatory Offenses, § 9.04[5], at 9-67 (Rel. 2, 1991) (citing cases); cf. United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994) (mail fraud scheme may continue after mailing). That a scheme may extend back beyond the limitation period does not preclude prosecution of an offense committed in furtherance of the scheme within the period.
Defenses—Good Faith
Good faith is recognized as a defense to a charge of mail or wire fraud. See, e.g., United States v. Casperson, 773 F.2d 216, 223 (8th Cir. 1985). For a discussion of the defense of good faith and the entitlement of jury instructions on this issue, see Green v. United States, 474 U.S. 925 (1985); see also Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 719 (1994) (and cases cited).
Drafting a Mail Fraud and/or Wire Fraud Indictment
The Criminal Division has published a collection of indictment forms, Drafting Indictments most recently updated in March, 1995. These forms can be conveniently accessed and saved as word processing documents using USABook:
Mail Fraud
Mail Fraud Scheme/Artifice
Sufficiency of Indictment—Generally
Generally, Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires an indictment to provide "a plain, concise and definite written statement of the essential facts constituting the offense charged." United States v. Yefsky, 994 F.2d 885, 893 (1st Cir. 1993) ("The Supreme Court has instructed that an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy.") (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); see also Collins v. Markley, 346 F.2d 230, 232 (7th Cir.) (en banc) ("The sufficiency of an indictment is to be measured by certain guide lines. First, the indictment standing alone must contain the elements of the offense intended to be charged, and it must be sufficient to apprise the accused of the nature of the offense. Second, after conviction, the record of the case must be sufficient so that the accused can plead the judgment in bar of any subsequent prosecution for the same offense."), cert. denied, 382 U.S. 946 (1965).
Accordingly, a mail fraud or wire fraud indictment should contain a reasonably detailed description of the particular scheme the defendant is charged with devising to ensure that the defendant has sufficient notice of the nature of the offense. See Yefsky, 994 F.2d at 893 ("The indictment may incorporate the words of the statute to set forth the offense, but the statutory language '"must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."'") (quoting Hamling, 418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S. 483, 487 (1888))); cf. United States v. Nance, 533 F.2d 699, 702 (D.C. Cir. 1976) (noting with approval mail fraud count that specifies misrepresentations); United States v. Curtis, 506 F.2d 985, 990 (10th Cir. 1974) (citations omitted) (dismissing mail fraud indictment that excludes false pretenses).
In Yefsky, the court held that the indictment was defective in that it did not provide the defendant with adequate notice of the charge (conspiracy to commit mail fraud) against him. 994 F.2d at 993 ("Where guilt depends so crucially upon . . . a specific identification of fact, . . . cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.") (citing Hamling, 418 U.S. at 118).
In Curtis, the court stated the following in considering the sufficiency of the allegations contained in an indictment charging mail fraud:
Mere evidential matters or detail more appropriate in bills of particular need not be pleaded in an indictment based upon 1341. [citations omitted] But as these cases demonstrate, some substantial indication of the nature or character of any scheme or artifice to defraud, or to obtain money or property by means of false pretenses, representations or promises is requisite. And it is not sufficient in this regard to merely plead the statutory language. [citations omitted] A reference to the cases cited first above will disclose that in each instance the nature of the schemes or artifices is identified or described, including the particular pretenses, representations or promises claimed to have been false.
506 F.2d at 989-90 (holding that the indictment, which pleaded little more than the statutory language without any fair indication of the nature or character of the scheme or artifice relied upon, or the false pretenses, misrepresentations or promises forming a part of it, was fatally defective); see also United States v. Crummer, 151 F.2d 958 (10th Cir. 1945) ("While the particulars of the scheme are matters of substance and therefore must be described with a degree of certainty sufficient to show its existence of character, and fairly to acquaint the defendant with the particular fraudulent scheme charged against him, still the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.") (allegations of the scheme held to be sufficient), cert. denied, 327 U.S. 785 (1946); cf. United States v. Azad, 809 F.2d 291, 295 (6th Cir. 1986) ("What distinguishes this indictment from the indictment found defective in [Curtis], . . . is the clear and specific description of the fraudulent scheme found in the present indictment. The indictment before us does provide some 'substantial indication of the nature or character' of the scheme involved, and 'the scheme itself need not be pleaded with all the certainty in respect of time, place, and circumstance requisite in charging the mailing of the letter or other matter.'" ) (quoting Curtis, 506 F.2d at 990), cert. denied, 481 U.S. 1004 (1987); United States v. Adamo, 534 F.2d 31, 35 (3d Cir.) ("The Curtis indictment was so vague that trial might have proceeded upon an entirely different concept of the scheme than that contemplated by the grand jury when it returned the indictment. By contrast, the indictment in this case explicitly outlines the elements of the fraudulent plan."), cert. denied, 429 U.S. 841 (1976).
Sufficiency of Indictment—Victims and Loss
Victims of the fraud do not have to be identified by name in the indictment. United States v. Mizyed, 927 F.2d 979 (7th Cir.), cert. denied, 500 U.S. 937 (1991). Moreover, actual monetary loss need not be alleged. United States v. Barber, 881 F.2d 345, 348-49 (7th Cir. 1989) ("It is true that the indictment does not allege an actual monetary or economic loss to any insurance company. However, it is not necessary that an indictment charging mail fraud contain such an allegation."), cert. denied, 495 U.S. 922 (1990); see also United States v. Ginsburg, 909 F.2d 982, 988 n. 8 (7th Cir. 1990) ("McNally does not require that actual loss of money or property be alleged in the indictment."); United States v. Bucey, 876 F.2d 1297, 1311 (7th Cir.) ("[S]ince the mail fraud statute punishes the scheme to defraud, this court has reiterated on numerous occasions that the ultimate success of the fraud and the actual defrauding of a victim are not necessary prerequisites to a successful mail fraud prosecution."), cert. denied, 493 U.S. 1004 (1989).
Sufficiency of Indictment—Mailings or Transmissions in Furtherance of Scheme
"The Government need not allege the subordinate evidentiary facts by which it intends to prove the 'in furtherance' element of the crime charged, and an indictment setting out the mailings charged and alleging that they were in furtherance of the scheme should not be dismissed as insufficient on its face unless there is no conceivable evidence that the Government could produce at trial to substantiate its 'in furtherance' allegation." United States v. Castor, 558 F.2d 379, 385 (7th Cir. 1977), cert. denied, 434 U.S. 1010 (1978). In Castor, the court observed the following concerning the requirement of alleging that the mailings were in furtherance of the scheme:
The question is not whether the indictment particularly alleges sufficient facts from which a jury could find that the mailings charged were in furtherance of the scheme, but rather whether the Government conceivably could produce evidence at trial showing that the designated mailings were for the purposes of executing the scheme. United States v. Sampson, 371 U.S. 75, 76, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The resolution of the question of whether the mailings alleged were in furtherance of the scheme must await trial "unless it so convincingly appears on the face of the indictment that as a matter of law there need be no necessity for such delay." United States v. Feinberg, 50 F. Supp. 976, 977 (E.D.N.Y. 1973), aff'd, 140 F.2d 592 (2d Cir.), cert. denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1944).
Id. at 384-85.
Sufficiency of Indictment—Separate Offenses
Each mailing or transmission in furtherance of the scheme and artifice to defraud is a separate offense. See, e.g., United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994)(mail fraud); United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir.)(each use of mails is separate offense), cert. denied, 506 U.S. 1035 (1992); United States v. Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987)(wire fraud). Accordingly, proper draftsmanship requires that only one mailing or transmission should be alleged in each count. Otherwise, the count may be duplicitous.
Because descriptions of the scheme are frequently quite lengthy, it is suggested that those descriptive paragraphs set out in full in one count be adopted and incorporated into another count by suitable reference pursuant to the provision of Rule 7(c), Federal Rules of Criminal Procedure.
Sufficiency of the Indictment—Special Considerations
Take care to charge the proper method of violation of the statute! For example, if the letter is mailed to the district of indictment from another district, be sure to charge a taking from the mails, or delivery according to the direction thereon, rather than a placing in the mail. Conversely, charge a placing in the mail in the district of indictment of a letter addressed to someone outside that district. See Hagner v. United States, 285 U.S. 427 (1932) (indictment loosely and inartfully drawn).
Statement of Policy concerning Venue in Mail Fraud Prosecutions
Department of Justice policy opposes mail fraud venue based solely on the mail matter passing through a jurisdiction.
18 U.S.C. Section 1341—Elements of Mail Fraud
"There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
Knowingly and Willfully
The prohibition of 18 U.S.C. § 1001 requires that the false statement, concealment or cover up be "knowingly and willfully" done, which means that "The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but § 1001 does not require an intent to defraud -- that is, the intent to deprive someone of something by means of deceit." United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir.), cert. denied, 447 U.S. 907 (1980). The government may prove that a false statement was made "knowingly and willfully" by offering evidence that defendants acted deliberately and with knowledge that the representation was false. See United States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990). The jury may conclude from a plan of elaborate lies and half-truths that defendants deliberately conveyed information they knew to be false to the government. Id. at 214-15.
As used in the statute, the term "knowingly" requires only that the defendant acted with knowledge of the falsity. See United States v. Lange, 528 F.2d 1280, 1287-89 (5th Cir. 1976). As in other situations, to commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason. See Fifth Circuit Pattern Jury Instructions, § 1.35 (1990). Knowledge of the criminal statute governing the conduct is not required.
The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting "knowingly." United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).
A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).
The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done "willfully." See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).
Obstructing or Impairing Legitimate Government Activity
Under 18 U.S.C. § 371, the fraud or impairment of legitimate government activity may take any of several forms:
Bribery of a government employee, kickbacks to government employees or extortion of money or favors by government employees, misrepresentations of financial capability, alteration or falsification of official records, submission of false documents; and
Obstructing, in any manner, a legitimate governmental function.
18 U.S. Code § 1342 - Fictitious name or address
Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined under this title or imprisoned not more than five years, or both.
Saturday, December 20, 2014
Governor Wolf, SHUT DOWN THIS COURTHOUSE.
The terror of their injustice is unrestricted and boundless and concealed by corrupt manipulation of the willing judiciary.
“But I will tell you this. Even I am shocked at the level of public corruption.”
I am shocked at how deep it goes.
I am shocked at how powerful it is.
I have never seen anything like this. It’s breathtaking.
It has been described by the people familiar with what is happening as shameful.”
“But, if this can be done to me as Attorney General, the chief law enforcement officer of the 5th largest state in the country, i am sickened to think what can and may be done to regular, good people who don;t have the resources that I have to challenge it.”
- Pennsylvania Attorney General Kathleen Kane on two court ordered mandates from unidentified judges and unidentified courts.
Assemble the Pennsylvania Legislature... Suspend Rule 1.6 and arrest and prosecute the monsters who terrorize this county and bring shame upon the Commonwealth of Pennsylvania.
Thank the lawyers in the Legislature for their service and accept their resignations. Sen. Stewart Greenleaf and Rep. Todd Stephens should be at the front of the line... followed by the Judiciary Committees who ignored the issue... and then every lawyer in the Senate and Legislature. They have all participated in 'the worst kept secret in Pennsylvania'.
Pennsylvania Supreme Court Chief Justice Ron Castille can expose the Judges and Judiciary who prevented the Pennsylvania Attorney General from performing the responsibilities of the Office of Attorney General by issuing 'secret' orders to promote corruption and perversions of justice in violation of law, the Pennsylvania Constitution and the Constitution of the United States of America.
When you stop payment of the pensions to the corrupt, and seize the property obtained using their ill-gotten gains, you'll find the money to pay for that shortfall in the budget.
Proclaim JUSTICE throughout All the Land
... Don't be distracted by the petty stories of naughty emails and the infighting from those bullies already evicted from the AG's office. Friends of the last AG who ignored the massive corruption for years...
“But I will tell you this. Even I am shocked at the level of public corruption.”I am shocked at how deep it goes.
I am shocked at how powerful it is.
I have never seen anything like this. It’s breathtaking.
It has been described by the people familiar with what is happening as shameful.”
“But, if this can be done to me as Attorney General, the chief law enforcement officer of the 5th largest state in the country, i am sickened to think what can and may be done to regular, good people who don;t have the resources that I have to challenge it.”
- Pennsylvania Attorney General Kathleen Kane on two court ordered mandates from unidentified judges and unidentified courts.
Governor Wolf, Shut down the Montgomery County Courthouse.
Assemble the Pennsylvania Legislature... Suspend Rule 1.6 and arrest and prosecute the monsters who terrorize this county and bring shame upon the Commonwealth of Pennsylvania.
Thank the lawyers in the Legislature for their service and accept their resignations. Sen. Stewart Greenleaf and Rep. Todd Stephens should be at the front of the line... followed by the Judiciary Committees who ignored the issue... and then every lawyer in the Senate and Legislature. They have all participated in 'the worst kept secret in Pennsylvania'.
Pennsylvania Supreme Court Chief Justice Ron Castille can expose the Judges and Judiciary who prevented the Pennsylvania Attorney General from performing the responsibilities of the Office of Attorney General by issuing 'secret' orders to promote corruption and perversions of justice in violation of law, the Pennsylvania Constitution and the Constitution of the United States of America.
When you stop payment of the pensions to the corrupt, and seize the property obtained using their ill-gotten gains, you'll find the money to pay for that shortfall in the budget.
Proclaim JUSTICE throughout All the Land
Unto All the Inhabitants thereof.
... Don't be distracted by the petty stories of naughty emails and the infighting from those bullies already evicted from the AG's office. Friends of the last AG who ignored the massive corruption for years...
Friday, December 19, 2014
Mr. ______, Shut down this courthouse.
Who will be the one to end the abomination of injustice and corruption perpetuated by the criminals on the Montgomery County Judiciary?Gov. Tom Corbett - YOU FAILED. YOU IGNORED IT. YOU PARTICIPATED. YOU ENDORSED. No wonder you shuddered on the day Terance Healy introduced himself to you in Doylestown.
Attorney General Eric Holder - The United States Attorney General is the only lawyer in the country permitted to take action by law. Why are you taking so long? People are being killed because of the criminal actions of an entire judiciary.
Governor elect Tom Wolf - A non-lawyer who can lawfully take action to end a terrorist regime in the second largest county in Pennsylvania. Act now before they make it illegal for you to address the issue.
Governor Wolf... Shut Down this Courthouse!
Assemble the Pennsylvania Legislature... Suspend Rule 1.6 and arrest and prosecute the monsters who terrorize this county and bring shame upon the Commonwealth of Pennsylvania.
Thank the lawyers in the Legislature for their service and accept their resignations. Sen. Stewart Greenleaf and Rep. Todd Stephens should be at the front of the line... followed by the Judiciary Committees who ignored the issue... and then every lawyer in the Senate and Legislature. They have all participated in 'the worst kept secret in Pennsylvania'.
Pennsylvania Supreme Court Chief Justice Ron Castille can expose the Judges and Judiciary who prevented the Pennsylvania Attorney General from performing the responsibilities of the Office of Attorney General by issuing 'secret' orders to promote corruption and perversions of justice in violation of law, the Pennsylvania Constitution and the Constitution of the United States of America.
When you stop payment of the pensions to the corrupt, and seize the property obtained using their ill-gotten gains, you'll find the money to pay for that shortfall in the budget.
Unto All the Inhabitants thereof.
... Don't be distracted by the petty stories of naughty emails and the infighting from those bullies already evicted from the AG's office. Friends of the last AG who ignored the massive corruption for years...
Thursday, October 9, 2014
ex tenebris ad lucem
Where those who permit injustice while ignoring the rule of law and the principles contained in the Constitution are causing liberty to be in peril; holding justice hostage; undermining the essence of judicial independence; and usurping the authority of the judicial branch while concealing continued corruption by unethical, immoral and unscrupulous actions in the name of 'integrity',...
Every American has a responsibility to take action to preserve, protect, support and defend the integrity of the judiciary from any further jeopardy.
By freeing the courts from a crippling shameful burden and further self-sabotage, we restore the integrity of the judiciary, reestablish authority and jurisdiction, and return the government provided by the Constitution of the United States to purpose: to establish justice, ensure domestic tranquility, provide for the common defense, promote general welfare, and secure the blessings of liberty for ourselves and our posterity.
By our own necessity, and on behalf of the People of the United States of America,
We respectfully and sincerely petition for your immediate attention and action.
PERSEVERE. JUSTICE IS COMING.
Every American has a responsibility to take action to preserve, protect, support and defend the integrity of the judiciary from any further jeopardy.
| Rule 1.6 Confidentiality of Information of the Rules of Professional Conduct was improperly enacted by the state Supreme Court(s) when presented by the American Bar Association within their Model Rules of Professional Conduct causing the collateral, indirect, and absolute denial of rights secured and protected by the Constitution of the United States while denying and preventing any protection of the law to a litigant who has been the victim of fraud concealed from disclosure by every person, and organization, directly mandated to follow the Rules of Professional Conduct – who include all lawyers, all judges, and all law enforcement within each state, within each state government, and within the federal government. |
By freeing the courts from a crippling shameful burden and further self-sabotage, we restore the integrity of the judiciary, reestablish authority and jurisdiction, and return the government provided by the Constitution of the United States to purpose: to establish justice, ensure domestic tranquility, provide for the common defense, promote general welfare, and secure the blessings of liberty for ourselves and our posterity.
By our own necessity, and on behalf of the People of the United States of America,We respectfully and sincerely petition for your immediate attention and action.
PERSEVERE. JUSTICE IS COMING.
Thursday, September 18, 2014
Constitution Day 2014
The America Rebirth Tour arrived in Philadelphia on Constitution Day where the people on Independence Mall heard from speakers, politicians, advocates and civil rights leaders.
Congressional candidate Andy Ostrowski spoke about the failures within the judicial system which are contrary to constitutional standards and defy checks and balances.
Civil Rights legend Jesse Epps announced a program where people can become involved in the Constitution by adding their name to the document which will be presented to President Obama at next year's event.
Advocate Terance Healy spoke about the loss of constitutional rights and the failure of government to take any actions which "preserve protect or defend" the constitution. He further explained the improperly enacted and unconstitutional laws which are being followed that are offered as an explanation for the failure to address loss of basic constitutional rights within the American courts.
Activist Todd Krautheim addressed the set-backs to the civil rights movement from the 60's which have been undermined by a deliberate and racially motivated effort. The nation's prison population contains a disparate cross section based on race where peoples rights have been ignored and allowing the nations private prisons to meet occupancy obligations.
The Constitution is not DEAD DEAD DEAD - that is the exaggeration of a Supreme Court Justice who has some metaphor issues. The Constitution of the United States IS BEING IGNORED.
Ignored by government officials who swear to preserve protect and defend the Constitution but lack any understanding of how to go about it or are directly prevented from action by laws enacted to undermine the judiciary and law enforcement.
Ignored by the People who have not yet been affected by the loss of constitutional protections. The unaffected majority content in the illusion has never effected any change until the reality is exposed.
Laws which undermine the basic and primary concept of the Constitution... TO ESTABLISH JUSTICE... have caused the current Constitutional Crisis in the United States. When the President, Congress and Supreme Court stop pointing at each other with dramatic unconstitutional accusations, they will realize that their actions and their inability to take any direct corrective action has been designed and executed by the seditious efforts of the American Bar Association. But, as ABA members, they are not inclined to reveal the embarrassing details of their social organization's acts of treason.
Congressional candidate Andy Ostrowski spoke about the failures within the judicial system which are contrary to constitutional standards and defy checks and balances.
Civil Rights legend Jesse Epps announced a program where people can become involved in the Constitution by adding their name to the document which will be presented to President Obama at next year's event.
Advocate Terance Healy spoke about the loss of constitutional rights and the failure of government to take any actions which "preserve protect or defend" the constitution. He further explained the improperly enacted and unconstitutional laws which are being followed that are offered as an explanation for the failure to address loss of basic constitutional rights within the American courts.
Activist Todd Krautheim addressed the set-backs to the civil rights movement from the 60's which have been undermined by a deliberate and racially motivated effort. The nation's prison population contains a disparate cross section based on race where peoples rights have been ignored and allowing the nations private prisons to meet occupancy obligations.The Constitution is not DEAD DEAD DEAD - that is the exaggeration of a Supreme Court Justice who has some metaphor issues. The Constitution of the United States IS BEING IGNORED.
Ignored by government officials who swear to preserve protect and defend the Constitution but lack any understanding of how to go about it or are directly prevented from action by laws enacted to undermine the judiciary and law enforcement.
Ignored by the People who have not yet been affected by the loss of constitutional protections. The unaffected majority content in the illusion has never effected any change until the reality is exposed.
Laws which undermine the basic and primary concept of the Constitution... TO ESTABLISH JUSTICE... have caused the current Constitutional Crisis in the United States. When the President, Congress and Supreme Court stop pointing at each other with dramatic unconstitutional accusations, they will realize that their actions and their inability to take any direct corrective action has been designed and executed by the seditious efforts of the American Bar Association. But, as ABA members, they are not inclined to reveal the embarrassing details of their social organization's acts of treason.
Friday, August 22, 2014
Response to US Attorney
August 22, 2104
U.S. Department of Justice
United States Attorneys
RE: Your letter dated August 19, 2014 (Attached)
A package was hand delivered to the Philadelphia US Attorney’s office and we asked for a meeting. The attached response is inappropriate, unsigned, on questionable letterhead and completely neglects the issue to be discussed.
The game of making certain there is no way to know to whom we should follow up is tiresome. Why is the United States Attorney playing with people asking for help? And why is the issue no longer the relevant one, but the impossibility of meeting to discuss a federal crime?
Your reply indicates that that the US Attorney “is responsible for the prosecution of persons accused of violating federal laws”. The Constitution of the United States is a federal law. Rights secured by the constitution have been violated, personally and to millions across the nation.
The Pennsylvania Judiciary has violated the Constitution of the United States leaving the courts undermined by a rule enacted by the state supreme court which additionally violates the Pennsylvania Constitution. The same rule undermines the federal courts. The package of letters provided exposed this issue with clear examples.
If your office is also following the Pennsylvania Rules of Professional Conduct and as lawyers you are obligated to conceal the crime because it adversely affects the integrity of the judiciary, then indicate that truth and recognize it as the problem to be addressed.
Acknowledge the mandate requiring all lawyers to ignore judicial corruption and injustice, and acknowledge that the judicial branch of state and federal government has been undermined by one rule put forth by the American Bar Association which has undermined the United States Constitution in every court in the country.
The Department of Justice indicates the US Attorney is the appropriate contact.
A meeting is requested to discuss the issue and the criminal actions which have occurred to prevent exposure and resolution of this national issue.
Respectfully,
Terance Healy
Todd Krautheim
( PDF version )
U.S. Department of Justice
United States Attorneys
RE: Your letter dated August 19, 2014 (Attached)
A package was hand delivered to the Philadelphia US Attorney’s office and we asked for a meeting. The attached response is inappropriate, unsigned, on questionable letterhead and completely neglects the issue to be discussed.
The game of making certain there is no way to know to whom we should follow up is tiresome. Why is the United States Attorney playing with people asking for help? And why is the issue no longer the relevant one, but the impossibility of meeting to discuss a federal crime?
Your reply indicates that that the US Attorney “is responsible for the prosecution of persons accused of violating federal laws”. The Constitution of the United States is a federal law. Rights secured by the constitution have been violated, personally and to millions across the nation.
The Pennsylvania Judiciary has violated the Constitution of the United States leaving the courts undermined by a rule enacted by the state supreme court which additionally violates the Pennsylvania Constitution. The same rule undermines the federal courts. The package of letters provided exposed this issue with clear examples.
If your office is also following the Pennsylvania Rules of Professional Conduct and as lawyers you are obligated to conceal the crime because it adversely affects the integrity of the judiciary, then indicate that truth and recognize it as the problem to be addressed.
Acknowledge the mandate requiring all lawyers to ignore judicial corruption and injustice, and acknowledge that the judicial branch of state and federal government has been undermined by one rule put forth by the American Bar Association which has undermined the United States Constitution in every court in the country.
The Department of Justice indicates the US Attorney is the appropriate contact.
A meeting is requested to discuss the issue and the criminal actions which have occurred to prevent exposure and resolution of this national issue.
Respectfully,
Terance Healy
Todd Krautheim
( PDF version )
Monday, August 11, 2014
MOTION FOR RECONSIDERATION/REVIEW OF PER CURIAM ACTION
Philadelphia Office
| Terance Healy | : NO: 900 EDA 2014 |
| : | |
| V. | : |
| : | |
| David R. Miller | : |
| Jennifer K. Miller | : |
| : |
MOTION FOR RECONSIDERATION/REVIEW OF PER CURIAM ACTION
Regarding the Per Curiam Order attached.
The caption is INCORRECT.
The decision is UNEXPLAINED.
The per curiam order is UNSIGNED.
The per curiam order is UNDATED.
The motion was UNCONTESTED.
Please identify the judge, the motions panel, and/or the member(s) of the Central Legal Staff involved in the careless preparation of the document.
Attached are copies of the following Superior Court Of Pennsylvania which demonstrate the previous decisions of the Superior Court of Pennsylvania with regard to procedurally defective orders where the court lacked jurisdiction.
| J-A01019-14 | Kozel v. Kozel | #461 WDA 2013 |
| J-A27027-13 | Wagner v. Wagner | #235 MDA 2013 |
| J-S17007-13 | Hauck v. Hauck | #1984 WDA 2011 |
| J-A02029-13 | Reece v. Reece | #987 WDA 2012 |
| J-S21041/08 | Danz v. Danz | #1506 WDA 2007 |
| J-A14035/09 | Bingaman v Bingaman | #1644 MDA 2008 |
| J-A30006/02 | Lazaric v. Lazaric | #263 EDA 2002 |
The evidence is clear. The law is clear. The precedents are well established.
Every action of the courts demonstrate the efforts to obstruct, misinform and misdirect somehow made ‘lawful’ by Rule 1.6 of the Rules of Professional Conduct causing the denial of life and liberty and terrorizing every aspect of life.
Carolyn Tornetta Carluccio issued a deliberately defective and void order. The court record indicates that she clearly lacked jurisdiction. The court record demonstrates the obstruction of the appeal filed on August 15, 2011.
There is no escape for the litigant. The court is mandated to terrorize and destroy the litigant ‘to protect the integrity of the courts.’ pursuant to Rule 1.6 of the Rules of Professional Conduct.
A deliberate, intentional and malicious court order issued by Carolyn Tornetta Carluccio without jurisdiction has terrorized the litigant from the day it was issued. An action done without jurisdiction to conceal the actions of fifteen prior judges in the matter which have attacked their victim since 2007.
The County & Court then went to work to obstruct and deny the appeal of that order issuing further void orders based on the defective and void orders. Those who enforced the defective and void orders becoming involved in criminal acts for doing so. The mandate for protecting integrity of those without integrity growing exponentially.
The Court personnel and all lawyers are mandated to obstruct and deny the victim ‘to protect the integrity of the court’. In doing so, they become involved in the obstruction of justice.
Each court believing the litigant is causing their involvement in this crime. Not the ‘judge’ acting without jurisdiction… not the Courts which mandated their participation in the denial of justice. Each ignoring the law and the US Constitution in the process of self-preservation and sacrifice of their own judicial integrity.
The Appellant is being denied Life, Liberty and equal protection under the law. He is experiencing the complete loss of rights and privileges protected by the Constitution of the United States, and the Pennsylvania Constitution.
The inability to accomplish anything with regard to the Appeal is caused by the courts, enabled by the court, endorsed by the courts, made ‘lawful’ by the courts as everyone involved in the denial of constitutionally protected rights is mandated to conceal the corruption, injustice and lack of jurisdiction of the court.
The victim can do nothing to escape the game of “The order is not void until we say it’s void’. There have been over 80 attempts to have the court take the lawful action to void the order. Every attempt has been ignored.
The Superior Courts are mandated to obstruct and deny the victim ‘to protect the integrity of the court’. In doing so they became involved in the obstruction of justice. Their knowledge of the void and defective orders mandated that they address the issue. A mandatory action, not a discretionary issue for the court.
The Pennsylvania Supreme Court is mandated to do the same. The Supreme Court enacted the law and in doing so must follow it. This prevents the Supreme Court from repealing the law or addressing the injustice.
And so it goes, that every effort to prevent any interaction with the judiciary is the primary focus. It is essential to ‘protect the integrity of the judiciary’. The denial of justice to the litigant is a consequence. The continued peril and jeopardy of the victim is not a concern.
The chaos injected by the letter dated August 8, 2014 and the improperly captioned, unexplained, unsigned, undated decision to the uncontested motion.
The Montgomery County Court has neglected to provide the full court record to the Superior Court and has obstructed efforts to produce the documents and transcripts to the Superior Court of Pennsylvania.
This Court has been notified of the litigation in the Federal Courts which is now before the United States Congress and the President to provide the only escape from the nightmare created when the Pennsylvania Supreme Court, and EVERY state supreme court, enacted the Rules of Professional Conduct into law without ANY constitutional review, construction by a legislature or signature of any governor. Copies of notices attached.
I respectfully request review of this matter based on the fact that Rule 1.6 of the Rules of Professional Conduct results in the absolute denial of right and liberties protected by the United States Constitution and that the supporting staff of this Court cease from unexplained and unsubstantiated actions to obstruct, prevent and deny justice in this matter.
AN ORAL ARGUMENT ON THIS MOTION IS DEMANDED
Respectfully,
Terance Healy
NB: The game of the Prothonotary deliberately improperly captioning the matter is obvious and tiresome. Please correct all records and documents accordingly.
The matter has left the appellant homeless and destitute and forced to respond to the Courts.
The appellant has no choice but to persist as he is not capable of suicide.
J-A01019-14 Kozel v. Kozel #461 WDA 2013
J-A27027-13 Wagner v. Wagner #235 MDA 2013
J-S17007-13 Hauck v. Hauck #1984 WDA 2011
J-A02029-13 Reece v. Reece #987 WDA 2012
J-S21041/08 Danz v. Danz #1506 WDA 2007
J-A14035/09 Bingaman v Bingaman #1644 MDA 2008
J-A30006/02 Lazaric v. Lazaric #263 EDA 2002
Letter to United States Attorneys August 8, 2014
Letter to President Barack Obama July 28, 2014
Letter to US Senators Patrick Toomey and Robert Casey July 28, 2014
Letter to the Senators of the 113th Congress July 28, 2014
Letter to US Senate Committee on the Judiciary July 30, 2014
Letter to Sheriffs of Pennsylvania July, 31, 2014
Letter to Pennsylvania Senate Judiciary Committee July 31, 2014
Letter to United States House of Representatives July 30, 2014
Letter to US House Committee on the Judiciary July 30, 2014
Letter to Governor of EVERY state July 28, 2014
Letter to Governor Tom Corbett August 2, 2014
Letter to EVERY Pennsylvania Senator August 2, 2014
Letter to the Pennsylvania Legislature – Representatives August 2, 2014
Letter to Governor Tom Corbett, the Sheriffs of Pennsylvania, The Pennsylvania Legislature, the Attorney General of Pennsylvania August 3, 2014
Friday, August 8, 2014
Letter to United States Attorneys
August 8, 2014
The United States Attorneys
It has been one year since the Constitutional Challenge of Rule 1.6 was filed to address the Constitutional Crisis in the United States.
A law enacted without proper construction, without constitutional review, without involvement of any state legislature and without the signature of any governor designed to ignore judicial corruption and injustice which includes an aggressively enforced MANDATE of silence for all lawyers.
Filed and served upon every state Attorney General yet the federal courts undermined the preemptive challenge, concealed the matter from fifty six state attorneys general and improperly dismissed the matter without substantiation while ignoring the relevant doctrine. The actions by the court confirmed the deliberate intent and purpose of the law and it’s denial of constitutional rights without regard for the injustice served upon the people of the United States..
Enclosed are letters to the President, the US Congress, the Governors of the United states, et al.
Please review and respond. This issue will not go away on it’s own.
The Constitutional rights of the American People are being denied by the courts and held hostage by a mandate of confidentiality for all attorneys in state and federal courts which has effectively undermined the United States Government.
Your attention to this matter is anticipated and expected. Please contact us to arrange a meeting.
Respectfully,
Terance Healy
Todd M. Krautheim
PDF Version with ALL attachments
The United States Attorneys
It has been one year since the Constitutional Challenge of Rule 1.6 was filed to address the Constitutional Crisis in the United States.
A law enacted without proper construction, without constitutional review, without involvement of any state legislature and without the signature of any governor designed to ignore judicial corruption and injustice which includes an aggressively enforced MANDATE of silence for all lawyers.
Filed and served upon every state Attorney General yet the federal courts undermined the preemptive challenge, concealed the matter from fifty six state attorneys general and improperly dismissed the matter without substantiation while ignoring the relevant doctrine. The actions by the court confirmed the deliberate intent and purpose of the law and it’s denial of constitutional rights without regard for the injustice served upon the people of the United States..
Enclosed are letters to the President, the US Congress, the Governors of the United states, et al.
Please review and respond. This issue will not go away on it’s own.
The Constitutional rights of the American People are being denied by the courts and held hostage by a mandate of confidentiality for all attorneys in state and federal courts which has effectively undermined the United States Government.
Your attention to this matter is anticipated and expected. Please contact us to arrange a meeting.
Respectfully,
Terance Healy
Todd M. Krautheim
PDF Version with ALL attachments
Friday, August 1, 2014
Response to PA Chief Deputy Attorney General
August 1, 2014
Gregory R. Neuhauser
Chief Deputy Attorney General
Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
RE YOUR FILE # 3600
I have received your acknowledgment of the Notice pursuant to Rule 521.
Your letter misspells my name in every location, including the caption of the case. I understand this is often done to make it appear that the case does not exist and allow for prompt disregard of these matters. I request that you correct the spelling error in order for your office to review the actual matter.
Also, in the letter sent I included all of the associated case references.
Superior Court of Pennsylvania #1330 EDA 2013 Healy v Healy
Superior Court of Pennsylvania #900 EDA 2014 Healy v Miller
Montgomery County #2007-12477 Healy v Healy
Montgomery County #2013-29976 Healy v Miller
Third Circuit Court of Appeals # 13-4591 Healy, Krautheim v The Attorneys General
Eastern District of Pennsylvania #13-4614 Healy, Krautheim v The Attorneys General
Superior Court of Pennsylvania #943 EDA 2014 First Savings Bank v T. Krautheim
I am including copies of related correspondence from this week with President Barack Obama, The United States Senate, The Sentate Committee On the Judiciary, The United States House of Representatives, The House Committee on the Judiciary, The Governors of the United States, The Pennsylvania Senate Judiciary Committee, and The Sheriff’s of Pennsylvania.
Addressing the injustice of Rule 1.6 is an inevitability. Rule 1.6 causes a loss of constitutionally protected rights and prevents law enforcement from action. Facing it responsibly will affect the public reaction to this realization. We ask your involvement, or where your direct action is ‘unlawful’, whatever assistance of support and resources which will permit us to succeed for the betterment of the nation in the best interests of every American.
We would appreciate the opportunity to meet with you to discuss the issue in further detail.
Terance Healy
PDF Version with all attachments
Gregory R. Neuhauser
Chief Deputy Attorney General
Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
RE YOUR FILE # 3600
I have received your acknowledgment of the Notice pursuant to Rule 521.
Your letter misspells my name in every location, including the caption of the case. I understand this is often done to make it appear that the case does not exist and allow for prompt disregard of these matters. I request that you correct the spelling error in order for your office to review the actual matter.
Also, in the letter sent I included all of the associated case references.
Superior Court of Pennsylvania #1330 EDA 2013 Healy v Healy
Superior Court of Pennsylvania #900 EDA 2014 Healy v Miller
Montgomery County #2007-12477 Healy v Healy
Montgomery County #2013-29976 Healy v Miller
Third Circuit Court of Appeals # 13-4591 Healy, Krautheim v The Attorneys General
Eastern District of Pennsylvania #13-4614 Healy, Krautheim v The Attorneys General
Superior Court of Pennsylvania #943 EDA 2014 First Savings Bank v T. Krautheim
I am including copies of related correspondence from this week with President Barack Obama, The United States Senate, The Sentate Committee On the Judiciary, The United States House of Representatives, The House Committee on the Judiciary, The Governors of the United States, The Pennsylvania Senate Judiciary Committee, and The Sheriff’s of Pennsylvania.
Addressing the injustice of Rule 1.6 is an inevitability. Rule 1.6 causes a loss of constitutionally protected rights and prevents law enforcement from action. Facing it responsibly will affect the public reaction to this realization. We ask your involvement, or where your direct action is ‘unlawful’, whatever assistance of support and resources which will permit us to succeed for the betterment of the nation in the best interests of every American.
We would appreciate the opportunity to meet with you to discuss the issue in further detail.
Terance Healy
PDF Version with all attachments
Wednesday, July 30, 2014
Rule 1.6 has NOT been Misinterpreted or Misunderstood
The Constitutional Challenge is NOT misinterpreting or misunderstanding Rule 1.6.
These are the dismissive suggestions of lawyers with regard to the Constitutional Challenge of Rule 1.6. It is what they tell people who ask them about it. They offer no further information to back up their statement. They further indicate that we will never succeed. (and neglect to explain.)
These lawyers are WRONG.
The Constitutional Challenge of Rule 1.6 backs up every statement. Every post on the web has supporting documentation which corroborates every statement.
Within Pennsylvania we have four clear examples of Corruption and Injustice where the actions of the judiciary and lawyers involved in the matters have defied any logical and acceptable explanation. When Rule 1.6 is applied the actions of law enforcement are clearly explained.
- Kids for Cash
- Jerry Sandusky prosecution & the Sandusky Report
- Foreclosures
How about we have a discussion? a debate? in Public? on Television? Anytime... Anywhere...
Let's see who understands the improperly enacted and unconstitutional law - lawyers mandated to say nothing about it, or two non-lawyers who can demonstrate the mandate for lawyers to conspire to conceal injustice and corruption.
As those same lawyers are MANDATED to silence/confidentiality of information even where it is about Rule 1.6 Confidentiality of Information, We will see who is misinterpreting misunderstanding OR misinforming.
And we will see who gets disciplined for discussing the issue.
Rule 1.6 is frequently the subject of law review articles. Usually those articles are also addressing the problems with the Rule which cause it to undermine undermine morality, ethics, personal integrity. AND TO UNDERMINE JUSTICE. Search for those keywords in your favorite search engine. You may be surprised at the volume of material. The step that seems to be missing from any article is the unconstitutional aspect and the inescapable situation it causes for the victims of judicial corruption and injustice.
Addressing the injustice of Rule 1.6 is an inevitability. Facing it responsibly will affect the public reaction to this realization.
Where substantive rights are violated, directly or collaterally, the law is repugnant to the Constitution and a nullity.
The judiciary have buried an unconstitutional law so deep in the law books that they never expected any non-lawyer to find it, and survive to prove it while being denied their constitutional rights and the protection of the law.
No matter how deeply the mandate of Rule 1.6 is buried and concealed, THE LAW MAY NOT VIOLATE SUBSTANTIVE RIGHTS.
The Constitutional Challenge of Rule 1.6 has been presented to the President of the United States, the United States Congress and the Supreme Court of the United States.
These are the dismissive suggestions of lawyers with regard to the Constitutional Challenge of Rule 1.6. It is what they tell people who ask them about it. They offer no further information to back up their statement. They further indicate that we will never succeed. (and neglect to explain.)
These lawyers are WRONG.
The Constitutional Challenge of Rule 1.6 backs up every statement. Every post on the web has supporting documentation which corroborates every statement.
Within Pennsylvania we have four clear examples of Corruption and Injustice where the actions of the judiciary and lawyers involved in the matters have defied any logical and acceptable explanation. When Rule 1.6 is applied the actions of law enforcement are clearly explained.
- Kids for Cash
- Jerry Sandusky prosecution & the Sandusky Report
- Foreclosures
How about we have a discussion? a debate? in Public? on Television? Anytime... Anywhere...
Let's see who understands the improperly enacted and unconstitutional law - lawyers mandated to say nothing about it, or two non-lawyers who can demonstrate the mandate for lawyers to conspire to conceal injustice and corruption.
As those same lawyers are MANDATED to silence/confidentiality of information even where it is about Rule 1.6 Confidentiality of Information, We will see who is misinterpreting misunderstanding OR misinforming.
And we will see who gets disciplined for discussing the issue.
Rule 1.6 is frequently the subject of law review articles. Usually those articles are also addressing the problems with the Rule which cause it to undermine undermine morality, ethics, personal integrity. AND TO UNDERMINE JUSTICE. Search for those keywords in your favorite search engine. You may be surprised at the volume of material. The step that seems to be missing from any article is the unconstitutional aspect and the inescapable situation it causes for the victims of judicial corruption and injustice.
Addressing the injustice of Rule 1.6 is an inevitability. Facing it responsibly will affect the public reaction to this realization.
Where substantive rights are violated, directly or collaterally, the law is repugnant to the Constitution and a nullity.
The judiciary have buried an unconstitutional law so deep in the law books that they never expected any non-lawyer to find it, and survive to prove it while being denied their constitutional rights and the protection of the law.
No matter how deeply the mandate of Rule 1.6 is buried and concealed, THE LAW MAY NOT VIOLATE SUBSTANTIVE RIGHTS.
The Constitutional Challenge of Rule 1.6 has been presented to the President of the United States, the United States Congress and the Supreme Court of the United States.
| WE WELCOME YOUR QUESTIONS AND WILL ENDEAVOR TO ANSWER EACH. COMMENTS are not published on this site, but comments are reviewed and responded to on a regular basis. |
Tuesday, July 29, 2014
Letter to President Obama
July 28, 2014
Barack Obama
President of the United States
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President,
Please permit us to officially bring this national issue to your attention.
Operation Greylord – An undercover federal investigation of judicial corruption of an unprecedented magnitude has lead to a conspiracy of incomprehensible scope and magnitude where the judiciary is undermined and justice is denied to millions of Americans while and entire profession of lawyers and law enforcement is mandated to silence/confidentiality which prevents exposure and resolution of the unconstitutional injustice by the government.
The surviving victims of nationwide state and federal judicial corruption and injustice are relegated to (1) BEING HOMELESS/DESTITUTE, (2) INCARCERATION UNDER FALSE PRETENSES or (3) SUICIDE.
An unaffected majority does nothing. A responsible minority witnesses and reacts to the ‘broken’ condition of the government. We SEE the cause. We CAN fix this. There IS a resolution.
The response to Operation Greylord, perpetrated by the American Bar Association and enacted into law by state Supreme Courts in every state over a 25 year period from 1984 (New Jersey) to 2009 (Maine), was a level of corruption by an unchecked and self-policing judiciary giving rise to injustice of a scope and magnitude that ANY government would be unwilling and hesitant to admit.
The United States, the world leader of democracy, has denied the most basic rights of millions of Americans and controlled the media preventing the exposure of the government’s corruption… while doing nothing to address the corruption. There can be no effective reform while Rule 1.6 remains.
Even after presentment to the Judiciary and Government Representatives at state and federal levels, the Government continues to perpetrate a fraud of unfathomable proportions… and continues to deny the citizens of their most basic rights.
Addressing the injustice of Rule 1.6 is an inevitability. Facing it responsibly will affect the public reaction to this realization. Continuing to ignore this national issue is not an alternative. We ask your involvement, or where your direct action is ‘unlawful’, whatever assistance of support and resources which will permit us to succeed for the betterment of the nation in the best interests of every American.
Sincerely,
Terance Healy
Todd M. Krautheim
PDF Letter to President
PDF Attachment
Barack Obama
President of the United States
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President,
Please permit us to officially bring this national issue to your attention.
Operation Greylord – An undercover federal investigation of judicial corruption of an unprecedented magnitude has lead to a conspiracy of incomprehensible scope and magnitude where the judiciary is undermined and justice is denied to millions of Americans while and entire profession of lawyers and law enforcement is mandated to silence/confidentiality which prevents exposure and resolution of the unconstitutional injustice by the government.
The surviving victims of nationwide state and federal judicial corruption and injustice are relegated to (1) BEING HOMELESS/DESTITUTE, (2) INCARCERATION UNDER FALSE PRETENSES or (3) SUICIDE.
An unaffected majority does nothing. A responsible minority witnesses and reacts to the ‘broken’ condition of the government. We SEE the cause. We CAN fix this. There IS a resolution.
The response to Operation Greylord, perpetrated by the American Bar Association and enacted into law by state Supreme Courts in every state over a 25 year period from 1984 (New Jersey) to 2009 (Maine), was a level of corruption by an unchecked and self-policing judiciary giving rise to injustice of a scope and magnitude that ANY government would be unwilling and hesitant to admit.
The United States, the world leader of democracy, has denied the most basic rights of millions of Americans and controlled the media preventing the exposure of the government’s corruption… while doing nothing to address the corruption. There can be no effective reform while Rule 1.6 remains.
Even after presentment to the Judiciary and Government Representatives at state and federal levels, the Government continues to perpetrate a fraud of unfathomable proportions… and continues to deny the citizens of their most basic rights.
Addressing the injustice of Rule 1.6 is an inevitability. Facing it responsibly will affect the public reaction to this realization. Continuing to ignore this national issue is not an alternative. We ask your involvement, or where your direct action is ‘unlawful’, whatever assistance of support and resources which will permit us to succeed for the betterment of the nation in the best interests of every American.
Sincerely,
Terance Healy
Todd M. Krautheim
PDF Letter to President
PDF Attachment
Thursday, July 17, 2014
Luzerne County Courthouse, Wilkes Barre, PA
Pictures at a Justice Rally assembled today by Congressional Candidate Andy Ostrowski.
Speakers included civil rights leader Jesse Epps, Todd Krautheim, Terance Healy, Diane Gochin, Gabriele Nicole Allen, John Kistler, Betsy Summers and Andy Ostrowski and others... JUSTICE IS COMING.
We the People of the United States,
in Order to form a more perfect Union,
establish Justice,
insure domestic Tranquility,
provide for the common defense,
promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this
Constitution for the United States of America.
Speakers included civil rights leader Jesse Epps, Todd Krautheim, Terance Healy, Diane Gochin, Gabriele Nicole Allen, John Kistler, Betsy Summers and Andy Ostrowski and others... JUSTICE IS COMING.
in Order to form a more perfect Union,
establish Justice,
insure domestic Tranquility,
provide for the common defense,
promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this
Constitution for the United States of America.
Friday, July 11, 2014
Marbury, Madison and Rule 1.6
Chief Justice John Marshall delivered the opinion of the court in Marbury vs Madison. Chief Justice Marshall did not foresee or imagine the judiciary would themselves enact an unconstitutional law and would further act to conceal their corruption.
Where Rule 1.6 has been enacted into law in each state by the state judiciary... I adapt and annotate (with credit to Chief Justice John Marshall and notes by Warren Michelson).
The challenge to the constitutionality of a law
(1) improperly enacted by the state judiciary
(2) where a review by the state supreme court would be biased and show conflict of interest
(3) the district court has refused to review the constitutional challenge
(4) the district court has prevented a default by the Executive branch of EVERY state
(5) the district court has dismissed the matter without substantiation in fact, law or doctrine
(6) the circuit court has affirmed that improper dismissal
(7) the circuit court has denied reconsideration en banc
NOW, (8) the plaintiffs present the case to the Supreme Court of the United States concurrently presenting to the United States Congress and the President.
The question, whether a law enacted by the judiciary, repugnant to the constitution, can become the law of the land, is a revision to the question still deeply interesting to the United States. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
The question is whether or not unconstitutional laws when enacted by the judiciary can become "the law of the land," which they certainly can not.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the judiciary are defined, and limited; as are those of the executive and legislative and that those limits may not be mistaken, or forgotten, the constitution is written.
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?
The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
It is a proposition too plain to be contested, that the constitution controls any law repugnant to it even where enacted by the judiciary; and, that the legislature must alter the constitution when necessity requires action.
Between these alternatives there is a middle ground. The constitution is a superior, paramount law, and like other acts, is alterable when the legislature shall have necessity to alter it.
Where a law enacted by the judiciary contrary to the constitution is not law and has been prevented from any review by the self-appointed sole arbitor of all things constitutional: the authority of the legislature is mandated to action unless written constitutions are absurd attempts, on the part of the people, to undermine and ignore a power without limits.
The problem is that laws enacted by the judiciary "contrary to the constitution" can be enforced just like the constitutional ones to the detriment of the entire country.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that a law enacted by the judiciary, repugnant to the constitution, is void.
If a law enacted by the judiciary, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?
This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It must, however, receive a more attentive consideration.
Here we challenge a law enacted by the Judicial branch. Under the current paradigm, the only avenue available for resolution is to bring suit in a federal court. Can the judiciary be unbiased in such a matter? No. The judiciary has emphatically demonstrated bias with determined and deliberate intent.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty while having been carelessly neglected, unlawfully denied, and improperly dismissed without substantiation in law or doctrine by the court and that negligence affirmed by the judges of the court without reconsideration or review en banc; even after the Executive Branch in each state by and through the state Attorney General had demonstrated the intent and lawfully acted to default in the matter.
It is the unlawful actions of the Judicial which have caused the necessity which require the matter to be brought to the Legislative and Executive.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature or the judiciary; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the judiciary shall do what is expressly forbidden, such law, notwithstanding the express prohibition, is in reality effectual. It would be giving to the judiciary a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
Given the manner in which the current system operates, and where the challenged unconstitutional law has been concealed from public view while unconstitutional results have undermined the authority and integrity of the government, constitutional "limits may be passed at pleasure" where the ease of enacting law under the guise of authority, without review during construction of unconstitutional aspects, encounter the extreme difficulty of challenging unconstitutional laws.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
Unconstitutional laws are void and that the courts must adhere to the Constitution. The Constitution is, after all, the supreme Law of the Land. Of course courts must adhere to and enforce Constitutional limits. This is not the same as saying that the courts are the sole arbiters for determining what the Constitution means and when a law is "repugnant" to it. Most certainly where the courts have acted irresponsibly with intent attempting to conceal their own undoing and failure from view.
For one to believe that the founders intended the federal government to police itself, one would have to believe that the founders expected the Judiciary to be infallible. While one might expect the Judicial branch to hold the Executive and Legislative to their Constitutional limits, who is to do the same for the Judicial?
If the Supreme Court is the sole and final arbiter of what is and isn't constitutional, then Constitutional "limits may be passed at pleasure" — at the pleasure of the Supreme Court, and there are no effective limits on the government created by the Constitution.
We hereby petition the United States Congress and the President of the United States on behalf of the People to address with haste this calamity as the corruption of the judicial branch threatens the country at it's very foundation. The Law is for the protection of the people. The Constitution does not exist to be usurped and improperly wielded to conceal the manipulated and the corrupt.
Respectfully,
Terance Healy
Todd M. Krautheim
Where Rule 1.6 has been enacted into law in each state by the state judiciary... I adapt and annotate (with credit to Chief Justice John Marshall and notes by Warren Michelson).
The challenge to the constitutionality of a law
(1) improperly enacted by the state judiciary
(2) where a review by the state supreme court would be biased and show conflict of interest
(3) the district court has refused to review the constitutional challenge
(4) the district court has prevented a default by the Executive branch of EVERY state
(5) the district court has dismissed the matter without substantiation in fact, law or doctrine
(6) the circuit court has affirmed that improper dismissal
(7) the circuit court has denied reconsideration en banc
NOW, (8) the plaintiffs present the case to the Supreme Court of the United States concurrently presenting to the United States Congress and the President.
The question, whether a law enacted by the judiciary, repugnant to the constitution, can become the law of the land, is a revision to the question still deeply interesting to the United States. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
The question is whether or not unconstitutional laws when enacted by the judiciary can become "the law of the land," which they certainly can not.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the judiciary are defined, and limited; as are those of the executive and legislative and that those limits may not be mistaken, or forgotten, the constitution is written.
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?
The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
It is a proposition too plain to be contested, that the constitution controls any law repugnant to it even where enacted by the judiciary; and, that the legislature must alter the constitution when necessity requires action.
Between these alternatives there is a middle ground. The constitution is a superior, paramount law, and like other acts, is alterable when the legislature shall have necessity to alter it.
Where a law enacted by the judiciary contrary to the constitution is not law and has been prevented from any review by the self-appointed sole arbitor of all things constitutional: the authority of the legislature is mandated to action unless written constitutions are absurd attempts, on the part of the people, to undermine and ignore a power without limits.
The problem is that laws enacted by the judiciary "contrary to the constitution" can be enforced just like the constitutional ones to the detriment of the entire country.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that a law enacted by the judiciary, repugnant to the constitution, is void.
If a law enacted by the judiciary, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?
This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It must, however, receive a more attentive consideration.
Here we challenge a law enacted by the Judicial branch. Under the current paradigm, the only avenue available for resolution is to bring suit in a federal court. Can the judiciary be unbiased in such a matter? No. The judiciary has emphatically demonstrated bias with determined and deliberate intent.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty while having been carelessly neglected, unlawfully denied, and improperly dismissed without substantiation in law or doctrine by the court and that negligence affirmed by the judges of the court without reconsideration or review en banc; even after the Executive Branch in each state by and through the state Attorney General had demonstrated the intent and lawfully acted to default in the matter.
It is the unlawful actions of the Judicial which have caused the necessity which require the matter to be brought to the Legislative and Executive.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature or the judiciary; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the judiciary shall do what is expressly forbidden, such law, notwithstanding the express prohibition, is in reality effectual. It would be giving to the judiciary a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
Given the manner in which the current system operates, and where the challenged unconstitutional law has been concealed from public view while unconstitutional results have undermined the authority and integrity of the government, constitutional "limits may be passed at pleasure" where the ease of enacting law under the guise of authority, without review during construction of unconstitutional aspects, encounter the extreme difficulty of challenging unconstitutional laws.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
Unconstitutional laws are void and that the courts must adhere to the Constitution. The Constitution is, after all, the supreme Law of the Land. Of course courts must adhere to and enforce Constitutional limits. This is not the same as saying that the courts are the sole arbiters for determining what the Constitution means and when a law is "repugnant" to it. Most certainly where the courts have acted irresponsibly with intent attempting to conceal their own undoing and failure from view.
For one to believe that the founders intended the federal government to police itself, one would have to believe that the founders expected the Judiciary to be infallible. While one might expect the Judicial branch to hold the Executive and Legislative to their Constitutional limits, who is to do the same for the Judicial?
If the Supreme Court is the sole and final arbiter of what is and isn't constitutional, then Constitutional "limits may be passed at pleasure" — at the pleasure of the Supreme Court, and there are no effective limits on the government created by the Constitution.
We hereby petition the United States Congress and the President of the United States on behalf of the People to address with haste this calamity as the corruption of the judicial branch threatens the country at it's very foundation. The Law is for the protection of the people. The Constitution does not exist to be usurped and improperly wielded to conceal the manipulated and the corrupt.
Respectfully,
Terance Healy
Todd M. Krautheim
Where a law enacted by the judiciary contrary to the constitution is not law and has been prevented from any review by the self-appointed sole arbitor of all things constitutional: the authority of the legislature is mandated to action unless written constitutions are absurd attempts, on the part of the people, to undermine and ignore a power without limits. |
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