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trial_brief_07912356458

trial_brief_07912356458

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Published by Jones, Walker

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Published by: Jones, Walker on Jan 13, 2011
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01/13/2011

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS(Kansas City Docket)UNITED STATES OF AMERICA))Plaintiff,))v.))CARRIE MARIE NEIGHBORS, ))Defendants. )Case No. 07-20124-01-CMUNITED STATES’ TRIAL BRIEF
The United States offers the following points and authorities to assist the Court inwhat the Government believes will be legal issues during the trial of this case.
I. Wire Fraud [18 U.S.C. 1343]
Title 18, United States Code, Section 1343, provides in pertinent part, “Whoever,having devised or intending to devise any scheme or artifice to defraud, or for obtainingmoney or property by means of false or fraudulent pretenses, representations, or promises,transmits or causes to be transmitted by means of wire, radio, or television communicationin interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for thepurpose of executing such scheme or artifice, shall be fined under this title or imprisonednot more than five years, or both.”“In order to sustain a conviction for aiding and abetting wire fraud, the governmentmust prove [the defendant] willfully assisted the perpetrators of the wire fraud crimes, andthat he did so with the requisite intent to defraud.
United States v. Rivera
, 295 F.3d 461,
Case 2:07-cr-20124-CM -JPO Document 357 Filed 09/09/10 Page 1 of 26
 
466 (5th Cir. 2002).”
United States v. Dazey 
, 403 F.3d 1147, 1163-64 (10th Cir. 2005).
1. Essential Elements
The essential elements of wire fraud are:a. First, the defendant knowingly devised or intended to devise a schemeto defraud or obtain money or property by means of false or fraudulent pretenses,representations or promises;b.Second, the defendant acted with specific intent to defraud or obtainmoney or property by means of false pretenses, representations or promises;c.Third, the defendant used interstate or foreign wire communicationsfacilities or caused another person to use interstate or foreign wire communicationsfacilities for the purpose of carrying out the scheme; andd.Fourth, the scheme employed false or fraudulent pretenses,representations, or promises that were material. Tenth Circuit Pattern Jury Instructions2.57;
United States v. Lake
, 472 F.3d 1247, 1255 (10th Cir. 2007);
BancoklahomaMortgage Corp. v. Capital Title Co.
, 194 F.3d 1089, 1102 (10th Cir. 1999);
United Statesv. Smith
, 133 F.3d 737, 742-43 (10th Cir. 1997);
United States v. Galbraith
, 20 F.3d 1054,1056 (10th Cir. 1994);
United States v. Drake
, 932 F.2d 861, 863 (10th Cir. 1991).
2. Scheme to Defraud
“A ‘scheme to defraud or obtain money or property by means of false pretenses,representations or promises’ is conduct intended to or reasonably calculated to deceivepersons of ordinary prudence or comprehension. A ‘scheme to defraud’ includes ascheme to deprive another of money, property or the intangible right of honest services.”
2
Case 2:07-cr-20124-CM -JPO Document 357 Filed 09/09/10 Page 2 of 26
 
Tenth Circuit Pattern Jury Instructions 2.57.Tenth Circuit law differentiates between a scheme to defraud that focuses on theend-result of the conduct (affirmative misrepresentations are not necessary), and ascheme to obtain money or property by false pretenses, representations or promises.
United States v. Cochran
, 109 F.3d 660, 664 (10th Cir. 1997).
3. Specific Intent to Defraud
“An ‘intent to defraud or obtain money by false pretenses, representations or promises’ means an intent to deceive or cheat someone.” Tenth Circuit Pattern JuryInstructions 2.57.Because it is difficult to prove intent to defraud from direct evidence, a jury mayconsider circumstantial evidence of fraudulent intent and draw reasonable inferencestherefrom. Thus, “[i]ntent may be inferred from evidence that the defendant attempted toconceal activity. Intent to defraud may be inferred from the defendant’smisrepresentations, knowledge of a false statement as well as whether the defendantprofited or converted money to his own use.”
Prows
, 118 F.3d at 692 (quotation omitted).Further, “[e]vidence of the schemer’s indifference to the truth of statements can amountto evidence of fraudulent intent.”
Trammell 
, 133 F.3d at 1352 (quotation omitted).
4. Interstate Wire Communications
“To ‘cause’ interstate wire communications facilities to be used is to do an act withknowledge that the use of the wire facilities will follow in the ordinary course of businessor where such use can reasonably be foreseen.” Tenth Circuit Pattern Jury Instructions2.57.
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Case 2:07-cr-20124-CM -JPO Document 357 Filed 09/09/10 Page 3 of 26

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