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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2003 Decided December 9, 2003
No. 02–3113
UNITED STATES OF AMERICA,
APPELLEE
v.
KINLEY W. HOWARD,
APPELLANT
–————
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00079–01)
–————
Brian W. Shaughnessy argued the cause for appellant.
With him on the brief was Harvey J. Volzer.
Susan A. Nellor, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher, Elizabeth Trosman, and
Linda T. McKinney, Assistant U.S. Attorneys.
Before: RANDOLPH and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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WILLIAMS, Senior Circuit Judge: Kinley Howard was con-
victed of two counts of mail fraud and one of wire fraud
arising from his efforts to defraud the heirs to his aunt’s
estate. Though Howard raises several issues on appeal, all
but one can be rejected without a published opinion. The
remaining argument is that the court improperly imposed a
two-level sentence enhancement for Howard’s violation of a
judicial order. On this one point we reverse and remand the
case for resentencing.
* * *
Following the death of his aunt Mildred Powell on July 15,
1996, Kinley Howard sought to become executor of her estate.
Although the probate court initially denied his petition be-
cause he was not a descendant of Powell, Howard forged the
signature of his mother (Powell’s sister) and secured appoint-
ment as co-executor. Following his appointment, Howard
engaged in mail and wire fraud to transfer funds from
Powell’s holdings in Washington, D.C., to bank accounts he
established in Florida. Howard later withdrew money from
the Florida accounts and transferred it to his personal and
business accounts.
The last act of wire or mail fraud for which Howard was
indicted occurred on April 9, 1997. On August 7, 1997, almost
four months later, the probate judge learned of Howard’s
possible malfeasance and issued an order suspending his
executorship. Despite this order, Howard continued to trans-
fer funds from the Florida accounts to his own accounts
through December 1997. At sentencing, the district court
found that Howard’s offense involved violation of a judicial
order and imposed a two-level enhancement under U.S.S.G.
§ 2F1.1(b)(4) (November 1, 1998), the guidelines vintage se-
lected by the district court as generally most favorable to
Howard. (See Tr. 12/06/02 at 2.) The court observed that
Howard’s continued transfer of funds following the probate
order was ‘‘relevant, on the issue of whether he did, in fact,
have the intent to defraud, which is clearly an element of both
3
the wire and mail fraud counts of the indictment.’’ (Tr.
12/06/02 at 29–30.)
The relevant guidelines section called for a two-level in-
crease if
the offense involved TTT a violation of any judicial or
administrative order TTT not addressed elsewhere in the
guidelinesTTTT
U.S.S.G. § 2F1.1(b)(4) (November 1, 1998). Recodified in the
2002 version as § 2B1.1(b)(7)(C), the section now includes the
modifiers ‘‘prior, specific’’ before the phrase ‘‘judicial TTT
order.’’ As it would be hard to say that an offense ‘‘involved
TTT a violation’’ of an order that did not exist, the change
appears not to affect the section’s substance.
Howard argues that the mailings and the wire transfer that
formed the basis of the three counts all occurred before the
probate court’s order. Although we are not sure why the
district court emphasized that the violation of the court order
was relevant to Howard’s intent (it certainly appears to have
been), the court seems implicitly to have ruled that the two-
level bump applies whenever activity constituting any part of
any element of an offense violates a court order.
Neither this nor any other circuit appears to have yet
considered what elements of an offense must occur after a
judicial order for the offense to ‘‘involve’’ a violation. But the
Seventh Circuit in United States v. Barger, 178 F.3d 844 (7th
Cir. 1999), faced a related question—application of the con-
cept of a ‘‘straddle offense’’ to a mail fraud conviction. A
straddle offense is one that began before November 1, 1987—
the date the guidelines went into effect—but continued after
that date. While the guidelines may be applied to such
offenses without violating the ex post facto clause, their
application to offenses completed before their effective date
would risk a violation. Barger’s last mail usage had been in
1986, though his scheme continued past November 1, 1987.
In refusing to find Barger’s crimes to be straddle offenses,
the court invoked statute of limitations principles. ‘‘Just as
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the statute of limitations for mail fraud begins at the time of
the mailing, we find that the crime of mail fraud is completed,
for sentencing purposes, at the time of the mailing. The
actual duration of the scheme is of no import.’’ Id. at 847
(emphasis added). Because a mail fraud violation is a use of
the mails in furtherance of a scheme, it is possible for a
defendant to be guilty of multiple mail fraud violations, each
based on a mailing, in pursuit of a single scheme. Id.
In applying the statute of limitations to mail and wire fraud
the circuits appear uniformly to focus on the actual mailing
and use of the wires. For mail fraud, see United States v.
Eisen, 974 F.2d 246, 263 (2d Cir. 1992); United States v.
United Medical & Surgery Supply Corp., 989 F.2d 1390, 1398
(4th Cir. 1993); United States v. Ashdown, 509 F.2d 793, 797–
98 (5th Cir. 1975); United States v. Crossley, 224 F.3d 847,
859 (6th Cir. 2000); United States v. Dunn, 961 F.2d 648, 650
(7th Cir. 1992); United States v. Pemberton, 121 F.3d 1157,
1163 (8th Cir. 1997). For wire fraud, see United States v.
Tadros, 310 F.3d 999, 1006 (7th Cir. 2002) (citing Barger, 178
F.3d at 847); United States v. Gross, 416 F.2d 1205, 1210 (8th
Cir. 1969) (mail and wire fraud).
In each of these cases, to be sure, the use of the mails or
wires within the period allowed the government to reach the
crime and yet rely on proof of scheme activity in an otherwise
time-barred period. Thus the cases are holdings only for the
sufficiency, not the necessity, of using the mails within the
statutory period. But no court has in any way suggested that
the statute of limitations would be satisfied as long as any one
element of the offense, e.g., part of the scheme, fell within the
period. Requiring that the order-violating conduct consist of
the mailing or wiring acknowledges these acts’ role as the
source of federal jurisdiction. See, e.g., United States v.
Reid, 533 F.2d 1255, 1260 (D.C. Cir. 1976). It also seems
likely in the present context to be comparatively clear and
thus to contribute to sentencing uniformity.
Because Howard’s last use of the mails or wires occurred
on April 9, 1997, both offenses were completed by that date.
The order from the probate judge was not issued until August
5
7, 1997, so neither the mail nor wire fraud offenses can be
said to have violated the order. Accordingly, though affirm-
ing Howard’s conviction in all other respects, we reverse the
two-level enhancement under § 2F1.1(b)(4) and remand the
case for resentencing.
So ordered.