dissenting:
I dissent because the majority reads an essential element out of the crime of wire fraud and because the evidence is insufficient to prove that essential element. Up to now, it has been the law that this crime requires an identifiable victim, i.e., someone must have been defrauded of his or her property. And, in fact, the indictment charges that:
In or about January 1994, defendant CRAWFORD stole an original oil painting entitled “Frost Flowers, Ipswich 1889,” signed by the artist Arthur Wesley Dow (the “Stolen Painting”), which then belonged to and was in the custody of UCLA, without the knowledge or permission of UCLA.
(Emphasis added.)
Today, without the citation of any authority to support it, the majority announces a new, and greatly expanded, rule-that “[t]he government did not need to prove beyond a reasonable doubt that UCLA owned Frost Flowers, only that Crawford knew that she did not.” Slip op. at 1092. As the government’s brief acknowledges, the case law is to the contrary. See Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (intent to defraud means an intent to obtain property from someone by deceiving or cheating them); McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (the “common understanding” of “to defraud” is “wronging one in his property rights by dishonest methods or schemes, and usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching”); United States v. Utz, 886 F.2d 1148, 1151 (9th Cir.1989) (observing that McNally limited mail fraud to “schemes to defraud another of money or property”); United States v. Lew, 875 F.2d 219, 222 (9th Cir.1989) (observing that mail fraud requires “an intent to obtain money or property from the victim of the deceit”). We have reversed a mail fraud conviction for failure of the indictment to charge a crime because “[t]o charge a scheme to defraud under section 1341, McNally requires an allegation that Mitchell intended to deprive the [victim] city of money or property.” United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir.1989) (emphasis added) (citations omitted).1 The Sentencing Guidelines also recognize that there cannot be a scheme to defraud without a victim. See U.S.S.G. § 2F1.1(2) (“If the offense involved ... a scheme to defraud more than one victim, increase by 2 levels.”).
Ignoring this law, the majority, in effect, has minted a new kind of victimless fraud. See slip op. at 1093 (“Even if title to Frost Flowers had never passed to UCLA, Crawford’s actions met the elements of the charges against her.”).
Here, even accepting the challenged lay opinion testimony at face value, the evidence was insufficient to sustain the conviction: The proven chain of title ends with the Arthur Wesley Dow Association. Michael Trentalange2 testified, over objection, that an “affiliated organization” is one “that used the University’s name, facilities, personnel or equipment in the course of [its] activities.” The Dow Association certainly did not use the University’s name and there is absolutely no evidence in the record that it used its “facilities, personnel *1095or equipment.” Thus, there is no evidence that the Dow Association was an “affiliated organization,”3 so that UCLA could not have succeeded to the Dow Association’s ownership of Frost Flowers, even under Trentalange’s dubious and legally conclu-sory testimony of what happens to the property of an “affiliated organization” that dissolves: “It would be similar to a department [of UCLA] owning equipment or property. From the very start it would be considered University property for the use of that particular affiliated organization, like it would be for the use of the Math Department, that kind of thing.” I submit that this evidence is insufficient as a matter of law as a basis on which a rational trier of fact could find beyond a reasonable doubt that UCLA was the owner of Frost Flowers4 and, thus, the victim of the scheme to defraud.
The majority opinion recognizes this deficiency in the evidence; thus, it strikes the requirement of an identifiable owner or victim from the elements of the crime and from the indictment even though the trial court’s instructions required, inter alia, that Crawford “knowingly devised ... a scheme ... as described in the indictment.” Slip op. at 1092 n. 5 (emphasis added).5
The majority asserts that “the jury may presume that property has a rightful owner, even if the identity of the rightful owner is not immediately known to one who comes upon the property.” Slip op. at 1093 (citing Cal. Civ.Code §§ 2080 & 2080.1). California’s finder law, however, is- not a criminal statute and (even assuming that violation of the state’s finder law is a crime) Crawford is not being criminally prosecuted for violation of the state’s finder law. Moreover, as the majority recognizes, that principle is not absolute. Property can be abandoned.6 See Pacific Gas & Elec. Co. v. Zuckerman, 189 Cal.App.3d 1113, 234 Cal.Rptr. 630, 650 (1987). California also recognizes adverse possession of personal property. See First Nat’l Bank v. Thompson, 60 Cal.App.2d 79, 140 P.2d 75 (1943); Cal.Civ.Proc.Code § 338(c) (providing three-year statute of limitations for “actions for the specific recovery of personal property”).
In the end, the majority’s case rests on its newly-minted rule that “the government did not need to prove UCLA’s ownership” of the painting and its conclusion that the evidence was sufficient to support the jury’s supposed finding “that Crawford did not own Frost Flowers,” a theory neither charged in the indictment nor on which the jury was instructed.7 Because I believe that this new rule is inconsistent with the Supreme Court’s and our precedents in the area, I respectfully dissent.
. Mitchell also held that "[t]he Government cannot sustain [a] conviction on a theory different from that charged by the grand jury.” Mitchell, 867 F.2d at 1234 (citations omitted).
. Trentalange was UCLA’s Executive Director of Information Systems. He had previously been, for a 10-year period, Executive Director of Gift Policy and Information Systems.
. As the majority specifically notes, Trenta-lange did not testify that the Dow Association was an "affiliated organization.” Slip op. at 1091.
. The only other "evidence” on this issue amounted to speculation. An archivist at UCLA testified that it was her "understanding” that the Dow Association "is affiliated with UCLA,” but examination of her testimony reveals a total lack of foundation for this assertion.
. The instruction on the interstate transportation of stolen property counts required the jury to find beyond reasonable doubt that Crawford "intended to deprive the owner" of the stolen property’s use. Slip op. at 1092 n. 5 (emphasis added).
. The majority faults Crawford for not having requested an instruction on abandonment. See slip op. at 1093. On the other hand, Crawford had no notice that the government would be relieved of the requirement to prove the charge in the indictment that she stole Frost Flowers from its "owner,” UCLA.
. The majority confuses the issue by stating that "[n]either statute requires that Crawford have known her victim’s identity....” Slip op. at 1093. The question is not whether Crawford knew the victim’s identity; rather, it is whether the government proved that there was a victim and whether that victim was the person or entity charged in the indictment as the victim.