FILED
NOT FOR PUBLICATION FEB 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10604
Plaintiff - Appellee, D.C. No. 2:12-cr-01660-JAT-1
v.
MEMORANDUM*
JOHN ROWLAND MILLS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Submitted February 4, 2015**
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
John Rowland Mills appeals the district court’s denial of his post-verdict
motion for judgment of acquittal on Count 15 of a 15-Count indictment for federal
wire fraud, 18 U.S.C. § 1343 (2012). Mills was found guilty by a federal jury for
violating 18 U.S.C. § 1343—the federal wire fraud statute—after he embezzled
nearly $130,000 from his employer and used an interstate wire transfer (from
Florida to Arizona) to cover his tracks. We have jurisdiction under 28 U.S.C.
§ 1291 (2012). Because we find that ample evidence supports the guilty verdict,
we affirm.
We review de novo a district court’s denial of a motion for acquittal. United
States v. Jinian, 725 F.3d 954, 959 (9th Cir. 2013). We affirm a conviction if there
is sufficient evidence to support it. “Sufficient evidence to support a conviction
exists if, ‘after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. at 959–60 (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
Section 1343 criminalizes conduct by an individual who, “having devised or
intending to devise any scheme or artifice to defraud, . . . transmits or causes to be
transmitted by means of wire . . . communication in interstate or foreign
commerce, any writings, signs, signals, pictures, or sounds for the purpose of
2
executing such scheme or artifice . . . .” 18 U.S.C. § 1343. To sustain a conviction
under § 1343, the government must establish that the defendant (1) developed a
scheme to defraud; (2) used a wire, radio, or television in interstate commerce to
further that scheme; and (3) had specific intent to defraud. See United States v.
Pelisamen, 641 F.3d 399, 409 (9th Cir. 2011). Only the second element is at issue
here.
We have recently considered whether and how the government can meet its
burden at step two where, as here, the defendant uses an interstate wire only after
“all the intended proceeds of the scheme have been obtained.” United States v.
Tanke, 743 F.3d 1296, 1302 (9th Cir. 2014). In Tanke we held that after-the-fact
“mailings designed to avoid detection or responsibility for a fraudulent scheme fall
within the mail fraud statute when they are sent before the scheme is completed.
To determine when a scheme ends, we look to the scope of the scheme as devised
by the perpetrator.” Id. at 1305.1
1
Although Tanke addresses the federal mail fraud statute, its holding applies
here because “[i]t is well settled that cases construing the mail fraud and wire fraud
statutes are applicable to either.” United States v. Shipsey, 363 F.3d 962, 971 n.10
(9th Cir. 2004).
3
Here, we must consider whether any reasonable jury could have found that
Mills’s transfer of nearly $100,000 back into his employer’s account was part of
his embezzlement scheme as he devised it.
We agree with the district court that the answer to this question is yes.
There is ample evidence from which the jury could conclude that the
embezzlement scheme as devised by Mills always included the cover-up. Mills
told FBI Special Agent Marilyn Shefveland that he originally planned to
“reassemble the hundred thousand dollars to the campaign account” with proceeds
from his business ventures. Mills even intended to pay interest on the money he
took. Mills knew that his employer’s campaign invoices would come due close to
the election (November 4, 2008), and so he was careful to reimburse the account
by October 31, 2008. Mills told Shefveland that he replenished the account
because “he did not want to lose his job.” Interstate transfers—such as
Mills’s—“designed to lull the victims into a false sense of security, postpone their
ultimate complaint to the authorities, and therefore make the apprehension of the
defendants less likely,” fall within 18 U.S.C. § 1343. United States v. Lane, 474
U.S. 438, 451–52 (1986); see also Jinian, 725 F.3d at 962.
4
Based on the evidence adduced at trial, any rational juror could conclude
that the cover-up, which Mills executed using an interstate wire transfer, was
always an essential part of Mills’s embezzlement scheme.
AFFIRMED.
5