United States v. Thomas Tanke , 743 F.3d 1296 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10362
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00293-EJG-1
THOMAS TANKE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, Senior District Judge, Presiding
Argued and Submitted
September 10, 2013—San Francisco, California
Filed March 3, 2014
Before: J. Clifford Wallace, Raymond C. Fisher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Wallace
2 UNITED STATES V. TANKE
SUMMARY*
Criminal Law
Affirming in part and vacating in part the district court’s
judgment, the panel held that mailings sent to avoid detection
or responsibility for a fraudulent scheme fall within the mail
fraud statute, 18 U.S.C. § 1341, when they are sent prior to
the scheme’s completion and that, to determine when a
scheme is completed, the court looks to the scope of the
scheme as devised by the perpetrator.
The panel affirmed the defendant’s mail fraud conviction
on count 2 of the indictment because a reasonable jury could
have found that the defendant’s September 16, 2004, letter
was sent before the completion of the embezzlement scheme
he devised.
The panel also held that the district court properly applied
sentencing enhancements for making a misrepresentation
during the course of a bankruptcy proceeding (U.S.S.G.
§ 2B1.1(b)(9)(B)) and for using sophisticated means
(U.S.S.G. § 2B1.1(b)(10)(C)).
In accord with the government’s concession, the panel
held that the district court plainly erred by including
$44,715.21 in restitution for fraudulent credit card charges
and $1,851.38 in restitution for wage overpayments that were
not part of the offenses of conviction and by failing to note
the waiver of interest on restitution on the judgment.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TANKE 3
Concurring in the majority’s judgment, Judge Wallace
wrote separately to point out the opinion’s limited holding
and unnecessary reasoning. He wrote that the majority’s
narrow focus wrongly implies a “statute of limitations”
approach to mail fraud liability, and that the majority
incorrectly dismisses the weight of precedent from sister
circuits.
COUNSEL
John Balazs (argued), Sacramento, California, for Defendant-
Appellant.
Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, and S. Robert Tice-Raskin
(argued), Assistant United States Attorney, Sacramento,
California, for Plaintiff-Appellee.
OPINION
FISHER, Circuit Judge:
We must decide when mailings sent to avoid detection or
responsibility for a fraudulent scheme are sent “for the
purpose of executing such scheme.” 18 U.S.C. § 1341. We
hold that such mailings fall within the mail fraud statute when
they are sent prior to the scheme’s completion and that, to
determine when a scheme is completed, we look to the scope
of the scheme as devised by the perpetrator. Because a
reasonable jury could have found that defendant Thomas
Tanke’s September 16, 2004 letter was sent before the
completion of the embezzlement scheme he devised, we
4 UNITED STATES V. TANKE
affirm his mail fraud conviction on count 2 of the indictment.
We also hold that the district court properly applied
sentencing enhancements under United States Sentencing
Guidelines Manual § 2B1.1(b)(9)(B) and (b)(10)(C).
I. BACKGROUND1
A. Tanke’s Embezzlement
Rafael Martin and his family operated two construction
businesses, Azteca Construction Company and Construction
Equipment Rental and Service (CERS). Defendant Thomas
Tanke worked for Azteca between 1999 and 2004, serving as
vice president of operations between 2000 and July 2004,
with authority to approve or issue checks from Azteca
accounts. He was not employed by CERS and had no
authority to receive CERS income or pay CERS’s
obligations. Tanke also maintained his own consulting
business, Cedar Creek Associates.
Over a 20-month period, Tanke embezzled more than
$192,000 from Azteca and CERS. From November 2002
through February 2004, Tanke caused the issuance of 21
Azteca checks, totaling $74,762.82, for his personal expenses.
The Azteca checks, most signed by Tanke, were paid to his
creditors or businesses he patronized, including General
Motors Acceptance Corporation (for an auto lease), Audi
Financial Services (financing for an Audi A4 Quattro),
Capital One Services (for a credit card), Household Credit
Services and HSBC Card Services, Inc. (for a credit card),
1
Because Tanke challenges the sufficiency of the evidence, we recite
the facts in the light most favorable to the government. See United States
v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011).
UNITED STATES V. TANKE 5
Providian National Bank (for a credit card), Onyx Acceptance
Corporation (financing for a BMW), Steve Larsen’s Wheel
Works (a retail bicycle shop) and Kenny G. and Company (a
jeweler). Tanke was never authorized to use Azteca checks
to pay personal obligations or to pay these specific creditors
or businesses.
Tanke falsified records to conceal these payments. He
used at least six false invoices to make it appear that the
checks were issued for legitimate business expenses. For
example, a false invoice from “Onyx Corporation,” ostensibly
for “[p]igging of lines and testing of all pipe,” was actually a
$10,027.92 payment for a BMW Z4. Tanke also falsified
carbon copies of checks in Azteca’s check register on at least
10 occasions, also to conceal the true nature of the payments.
For example, a check made payable to “Providian” (to pay
Tanke’s personal Providian Visa card) contained no memo
notation, whereas the carbon copy falsely stated that the
check was paid to “Providian Products” and referenced
“02420-0046-M,” an existing Azteca job number and cost
code.
Between February and July 2004, Tanke also diverted
seven checks payable to CERS, Martin and Azteca, totaling
$117,486.25, into his Cedar Creek bank account. The four
checks payable to Martin and Azteca had a handwritten
endorsement making the check payable to Cedar Creek, a
forged signature and a printed endorsement making the check
payable to Cedar Creek. The three checks payable to CERS
had a printed endorsement making them payable to Cedar
Creek.
6 UNITED STATES V. TANKE
B. Cedar Creek Cover Story
Tanke left Azteca in July 2004. It appears that Martin at
least suspected Tanke’s embezzlement a short time later. In
an August 5, 2004 email, Martin asked Tanke about a missing
April 2004 check, in the amount of $39,330, from Southern
Quality Trucks to CERS. Tanke responded by email that he
did “not have any check from Southern Quality Trucks” and
that all checks he had received had been turned over to
accounting or used to pay outstanding vendors and debts. In
fact, Tanke had long since deposited the check into his Cedar
Creek account.
In an August 6 email, Martin told Tanke that he knew the
check had been deposited into the Cedar Creek account. In
an email response that day, Tanke acknowledged that he had
diverted the money into his account, but told Martin that this
and similar diversions were legitimate transactions to
compensate him for consulting work Cedar Creek had
allegedly performed for Azteca and CERS. Tanke’s email
attached what he claimed were three “very old invoices” from
Cedar Creek and asserted that his actions had “ensured that
Cedar Creek was paid for these long overdue invoices.” In
addition to casting the diversions as legitimate payments to
Cedar Creek, Tanke’s email also used thinly veiled threats to
discourage Martin from reporting the matter to authorities.
Tanke wrote that this was “purely a ‘business issue’” and that
he “hope[d Martin would] not try to expand it to anything
else.” Tanke warned that, if Martin pursued the matter
further, he would report Martin to federal and state agencies,
writing: “You do not want to see this happen, as it could
involve you personally in criminal or civil action that could
put you in prison or forfeit all of your personal holdings.”
UNITED STATES V. TANKE 7
On August 17, Tanke emailed Martin that he should have
received invoices by mail showing that over $98,000 was due
to Cedar Creek for consulting fees. Tanke noted that Martin
had filed documents leading to a hold on the Cedar Creek
account and that, if Martin did not lift that hold, he would
report Martin’s “numerous frauds and false claims” to
authorities. Tanke concluded the email by writing: “I just
want what has been and is due to me and we can part friends.
Please do not force me to take action that will cause you
harm.”
Martin replied by email on August 18 that the invoices
were “not real,” that Tanke was a salaried employee who
received wages and that Azteca did not owe Tanke or Cedar
Creek any consulting fees. Martin added, “[i]n response to
your threats, if you ha[d] knowledge of any wrongdoing by
Azteca . . . , you should have reported it.”
On September 16, Tanke caused a letter to be sent from
Cedar Creek to Martin by U.S. mail. This mailing, charged
as count 2 of the indictment, stated that Azteca and CERS had
previously paid some invoices due to Cedar Creek (again, an
apparent reference to Tanke’s diversion of checks into his
Cedar Creek account) and alleged that Azteca had provided
“false information” to Cedar Creek’s bank, which resulted in
reversal of these payments. The letter enclosed an invoice
from Cedar Creek that requested payment for the previous
invoices as well as interest, totaling $159,990.95.
In a letter dated September 23, Martin rejected the new
invoice and stated that Azteca had never paid any of the
previous fictitious invoices either. Martin later testified at
trial that Cedar Creek did not perform any of the claimed
services reflected on the September 16 Cedar Creek invoice.
8 UNITED STATES V. TANKE
He also testified that neither Tanke nor Cedar Creek had ever
consulted for CERS.
C. Criminal Proceedings
In 2009, a grand jury indicted Tanke on five counts of
bank fraud, for violation of 18 U.S.C. § 1344, and two counts
of mail fraud, for violation of 18 U.S.C. § 1341. The first
mail fraud count, charged as count 1 of the indictment, was
for a July 22, 2004 check from Industrial Tractor Co. to
CERS for approximately $33,000, delivered via Federal
Express from South Carolina to California. Tanke does not
challenge his conviction on count 1. The second mail fraud
count, charged as count 2 of the indictment, was for the
September 16, 2004 mailing.
A jury found Tanke guilty on all counts, and the district
court sentenced him to 70 months’ imprisonment, 60 months’
supervised release and $243,403.96 in restitution. The
Sentencing Guidelines range of 70–87 months reflected a 2-
level enhancement for use of sophisticated means and another
2-level enhancement for misrepresentation or fraud during the
course of a bankruptcy proceeding.
II. DISCUSSION
Tanke raises five issues on appeal. He contends that (1)
there was insufficient evidence to support his mail fraud
conviction on count 2 of the indictment; (2) the district court
erred by imposing a 2-level enhancement for making a
misrepresentation during a bankruptcy proceeding; (3) the
district court erred by imposing a 2-level enhancement for
sophisticated means; (4) the district court erred by including
$44,715.21 in restitution for credit card charges that were not
UNITED STATES V. TANKE 9
part of the offenses of conviction; and (5) the judgment
should be amended to show that interest on the restitution
award was waived. The government concedes error on the
fourth and fifth issues but urges us to affirm on the first three
issues, which we address in turn. We have jurisdiction under
28 U.S.C. § 1291.
A. Mail Fraud
Tanke argues that the evidence is insufficient to sustain
his conviction on count 2. He argues that the September 16,
2004 letter was not “for the purpose of executing” his
fraudulent scheme, as 18 U.S.C. § 1341 requires, because it
was mailed after he had received all of the money from the
embezzlement scheme, Martin had uncovered the fraud and
the scheme had been completed. We review claims of
insufficient evidence under Jackson v. Virginia, 443 U.S.
307, 319 (1979). Such a challenge can succeed only if,
viewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
See Flyer, 633 F.3d at 917.
1.
When do mailings sent to facilitate concealment of a
fraudulent scheme – to avoid detection, prosecution or
conviction – fall within the federal mail fraud statute?2 The
2
“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.” Kann v. United States, 323 U.S. 88, 95 (1944).
Consequently, “there is reason to be scrupulous in reviewing the evidence
10 UNITED STATES V. TANKE
statute makes it unlawful to devise a scheme to defraud and
then to use the mails for the purpose of executing such
scheme:
Whoever, having devised or intending to
devise any scheme or artifice to defraud, or
for obtaining money or property by means of
false or fraudulent pretenses, representations,
or promises, or to sell, dispose of, loan,
exchange, alter, give away, distribute, supply,
or furnish or procure for unlawful use any
counterfeit or spurious coin, obligation,
security, or other article, or anything
represented to be or intimated or held out to
be such counterfeit or spurious article, for the
purpose of executing such scheme or artifice
or attempting so to do, places in any post
office or authorized depository for mail
matter, any matter or thing whatever to be
sent or delivered by the Postal Service, or
deposits or causes to be deposited any matter
or thing whatever to be sent or delivered by
any private or commercial interstate carrier, or
takes or receives therefrom, any such matter
or thing, or knowingly causes to be delivered
by mail or such carrier according to the
direction thereon, or at the place at which it is
directed to be delivered by the person to
whom it is addressed, any such matter or
thing, shall be fined under this title or
imprisoned not more than 20 years, or both.
to assure that the mailing element is adequately proven.” United States v.
Lo, 231 F.3d 471, 477 (9th Cir. 2000).
UNITED STATES V. TANKE 11
18 U.S.C. § 1341 (emphasis added). Accordingly, we have
held that mail fraud includes two elements: “first, the
government must prove that a defendant devised or intended
to devise a scheme to defraud a victim of his money or
property; second, it must prove that in executing the scheme,
the defendant made use of or caused the use of the mails.”
Lo, 231 F.3d at 475.
In deciding when mailings designed to avoid detection or
responsibility for a fraudulent scheme fall within the mail
fraud statute, we begin with the general principle that the
mailing must be sent “prior to the scheme’s completion.”
United States v. Lane, 474 U.S. 438, 453 (1986) (emphasis in
original). But when is a scheme complete?
A partial answer is that it plainly does not end before the
perpetrator has obtained money or property from the victims.
Thus, before proceeds of the fraud have been obtained, a
mailing need only in some way further the scheme, as
mailings designed to avoid detection or responsibility clearly
do.
Once proceeds of the fraud have been obtained, it is
harder to say when a scheme ends. The only easy case is that
of an ongoing scheme, in which the perpetrator has received
some of the proceeds of the fraud but expects to receive
additional proceeds of the fraud in the future. It is well
settled that mailings sent in the midst of such a scheme,
including those designed to avoid detection or responsibility,
fall within the statute. See Schmuck v. United States,
489 U.S. 705, 711–12, 714 (1989); United States v. Jinian,
725 F.3d 954, 962–63 (9th Cir. 2013); Sun Sav. & Loan Ass’n
v. Dierdorff, 825 F.2d 187, 196 (9th Cir. 1987); United States
v. Price, 623 F.2d 587, 590 & n.2, 593 (9th Cir. 1980),
12 UNITED STATES V. TANKE
overruled on other grounds by United States v. De Bright,
730 F.2d 1255 (9th Cir. 1984).
The more difficult cases are those in which all the
intended proceeds of the scheme have been obtained, but the
perpetrator uses the mails to avoid detection or responsibility
for the scheme. To determine whether such mailings
occurred before or after the scheme’s completion, we have to
establish when the scheme ended. To do so, we have to look
to the scope of the scheme as devised by the perpetrator.
In United States v. Sampson, 371 U.S. 75 (1962), for
example, the defendants were charged with mail fraud based
on letters they sent to their victims after they obtained the
victims’ money. See id. at 78–79. The letters were designed
to lull the victims into a false sense of security in order to
postpone their ultimate complaint to authorities. See id. at 78.
The district court said there could be no liability because the
letters were sent after the money was received, but the
Supreme Court disagreed. See id. at 79. The Court explained
that the question was not whether the money had been
obtained but whether the defendants’ plan had been fully
executed. See id. at 80. The Court held that the defendants’
scheme had not been fully executed at the time the letters
were sent because the scheme had contemplated lulling
activities from the start:
[T]he indictment in this case alleged that the
defendants’ scheme contemplated from the
start the commission of fraudulent activities
which were to be and actually were carried
out both before and after the money was
obtained from the victims. The indictment
specifically alleged that the signed copies of
UNITED STATES V. TANKE 13
the accepted applications and the covering
letters were mailed by the defendants to the
victims for the purpose of lulling them by
assurances that the promised services would
be performed. We cannot hold that such a
deliberate and planned use of the United
States mails by defendants engaged in a
nationwide, fraudulent scheme in pursuance
of a previously formulated plan could not, if
established by evidence, be found by a jury
under proper instructions to be “for the
purpose of executing” a scheme within the
meaning of the mail fraud statute.
Id. at 80–81 (emphasis added).
We applied the same principle in United States v.
Lazarenko, 564 F.3d 1026 (9th Cir. 2009). The defendant, a
Ukranian politician, engaged in a series of fraudulent
business transactions that netted him millions of dollars. See
id. at 1029. By 1994, the defendant had obtained the
proceeds from the scheme and concealed them in bank
accounts in Switzerland and the Bahamas. See id. at 1036.
Some years later, in 1997 and 1998, the defendant transferred
the money to banks in California to hide his fraudulent
activity as he sought political office. See id. We held that the
1997 and 1998 transfers fell outside the wire fraud statute
because, in the absence of any evidence that subsequent
transfers were part of the scheme as it was originally
conceived, the scheme had been completed in 1994:
Under the facts of this case, we conclude
no rational trier of fact could find that these
transfers in 1997 and 1998 were “in
14 UNITED STATES V. TANKE
furtherance” of the Naukovy fraud, which
centered on allegedly shady agricultural and
personal purchases. The fraudulent activity
was completed, and the money concealed, in
1994, when the money reached Lazarenko’s
control and he deposited it into coded bank
accounts where it remained for three years.
Subsequent transfers were not part of the
scheme as it was originally conceived. Cf. Lo,
231 F.3d at 478. Nothing in the evidence
supports an inference, let alone a conviction,
on the grounds that the transfers were simply
a delayed link in the fraudulent chain.
Id. at 1037.3
These cases teach that mailings designed to avoid
detection or responsibility for a fraudulent scheme fall within
the mail fraud statute when they are sent prior to the scheme’s
completion and that the scope of the scheme as devised by the
perpetrator determines when that scheme is completed. If the
scheme, as conceived by the perpetrator, has been fully
executed, then the mailing, even if sent to facilitate
concealment of the scheme, falls outside the statute.
We recognize that some would extend liability further, as
the government urges us to do here. Some courts appear to
require only that the mails are used to avoid detection or
responsibility for the fraud, irrespective of whether the
mailings postdate completion of the scheme. See United
3
“It 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).
UNITED STATES V. TANKE 15
States v. Lopez, 71 F.3d 954, 961–62 (1st Cir. 1995),
abrogated on other grounds by United States v. Wells,
519 U.S. 482 (1997); United States v. Young, 955 F.2d 99,
108 (1st Cir. 1992). Because such a rule would be
inconsistent with Sampson and Lazarenko, and contrary to
Lane’s requirement that the use of the mails take place “prior
to the scheme’s completion,” 474 U.S. at 453 (emphasis in
original), we decline to follow that approach.
Other courts, relying on “the self-evident proposition that
the aim of virtually all criminal actors, including those who
commit mail fraud, is not only to accomplish their criminal
goals, but also to escape detection and liability for these
misdeeds,” would appear to make avoiding detection and
prosecution an implicit component of every scheme to
defraud. United States v. Hoffman, 229 F. App’x 157, 158
(3d Cir. 2007) (unpublished). Hoffman’s suggestion, that
every scheme to defraud inherently includes taking any
necessary step to avoid detection and prosecution, has
intuitive appeal. But it is in tension with Sampson, which
required an actual and specific plan to conceal, not a
generalized one that could be inferred from the mere
existence of a fraudulent scheme. See 371 U.S. at 80–81.
Nor do we see how that approach could be reconciled with
the outcome in Lazarenko. Under Sampson and Lazarenko,
it cannot be enough that the scheme included a general desire
not to get caught; the government must be required to prove,
at a minimum, that the already conceived scheme included a
specific plan for evading detection.
Under Hoffman, moreover, no scheme to defraud would
ever end so long as the perpetrator could take some action to
avoid detection, prosecution or conviction because any such
action would be treated as carrying out an implicit plan to
16 UNITED STATES V. TANKE
conceal that was part of the scheme from the outset. Such
open-ended liability is of great concern, as we recognized in
Lazarenko:
If the government’s theory were correct,
then it would be possible for an ordinary fraud
to be converted into wire fraud simply by the
perpetrator picking up the telephone three
years later and asking a friend if he can store
some fraudulently-obtained property in his
garage before the police execute a search
warrant or later taking the proceeds of fraud
and transferring them to another bank. The
government’s theory extends an already broad
statute too far.
564 F.3d at 1037. As the Supreme Court cautioned in
Grunewald v. United States, 353 U.S. 391 (1957), albeit in
the conspiracy context:
[A]fter the central criminal purposes of a
conspiracy have been attained, a subsidiary
conspiracy to conceal may not be implied
from circumstantial evidence showing merely
that the conspiracy was kept a secret and that
the conspirators took care to cover up their
crime in order to escape detection and
punishment. . . . [A]llowing such a conspiracy
to conceal to be inferred or implied from mere
overt acts of concealment would result in a
great widening of the scope of conspiracy
prosecutions, since it would extend the life of
a conspiracy indefinitely. Acts of covering
up, even though done in the context of a
UNITED STATES V. TANKE 17
mutually understood need for secrecy, cannot
themselves constitute proof that concealment
of the crime after its commission was part of
the initial agreement among the conspirators.
For every conspiracy is by its very nature
secret; a case can hardly be supposed where
men concert together for crime and advertise
their purpose to the world. And again, every
conspiracy will inevitably be followed by
actions taken to cover the conspirators’ traces.
Sanctioning the Government’s theory would
for all practical purposes wipe out the statute
of limitations in conspiracy cases . . . .
....
. . . We cannot accede to the proposition
that the duration of a conspiracy can be
indefinitely lengthened merely because the
conspiracy is kept a secret, and merely
because the conspirators take steps to bury
their traces, in order to avoid detection and
punishment after the central criminal purpose
has been accomplished.
Id. at 401–02, 405; see also Lutwak v. United States, 344 U.S.
604, 616 (1953) (distinguishing between an actual
“agreement to conceal” and “an afterthought by the
conspirator for the purpose of covering up”).
Because the government’s theory here would authorize
new charges, rather than merely belated charges, it is
arguably even more troubling than the theory proposed by the
government in Grunewald. In the conspiracy context,
18 UNITED STATES V. TANKE
recognizing an implied agreement to conceal would only
extend the limitations period; the same charges could be
brought, albeit later. In the mail fraud context, however,
recognizing an implied scheme to conceal would not only
extend the limitations period but also give rise to an
additional crime every time the mails were used to execute
that scheme. That is, because the “scheme” would be said to
continue after the embezzlement was completed, the period
during which additional substantive crimes could be
committed would also be indefinitely extended. The theory
broadens substantive liability and extends the limitations
period.
In sum, we hold that 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.
A scheme may be devised over time, however. Not every
perpetrator “deliberately plan[s] and devise[s] a
well-integrated, long-range, and effective scheme” from the
outset. Sampson, 371 U.S. at 77. Allowance must be made
for the reality that embezzlements and other schemes to
defraud are often open-ended, opportunistic enterprises.
They may evolve over time, contemplate no fixed end date or
adapt to changed circumstances. Just as Lopez, Young and
Hoffman suggest too expansive a reading of the mail fraud
statute by covering any acts of concealment regardless of
when they occur, it would be overly restrictive to look only
at the scope of the plan as it was originally conceived. Lines
will have to be drawn between cases in which acts of
concealment can fairly be seen as part of the perpetrator’s
evolving plan devised during the life of the scheme and acts
UNITED STATES V. TANKE 19
of concealment that must be viewed as an after-the-fact event,
as in Lazarenko. Cf. Grunewald, 353 U.S. at 405 (making “a
vital distinction . . . between acts of concealment done in
furtherance of the main criminal objectives of the conspiracy,
and acts of concealment done after the central objectives have
been attained, for the purpose only of covering up after the
crime”).
2.
Applying these principles here, we conclude that a
reasonable jury could have found that Tanke sent the
September 16 letter prior to the scheme’s completion. To be
sure, one reasonable inference from the facts is that the
fraudulent scheme, as Tanke conceived it, was fully executed
by July 2004, when he obtained the last of the proceeds of his
embezzlement and terminated his employment with Azteca.
A jury could have found that the scheme ended at that time,
and that the efforts Tanke later made to intimidate Martin and
portray the diversions as legitimate payments for Cedar
Creek’s services were simply an after-the-fact coverup Tanke
conceived only after Martin discovered the embezzlement
and confronted Tanke in early August.
It is also plausible, however, that a reasonable jury could
have found that the Cedar Creek cover story was part of
Tanke’s embezzlement scheme from the outset or as it
evolved over time – just another misrepresentation to
facilitate diversion of Azteca’s and CERS’s funds into
Tanke’s bank accounts. Lazarenko held that no reasonable
jury could find that 1997 and 1998 wire transfers were part of
a scheme whose central objectives had been achieved three
years earlier. See Lazarenko, 564 F.3d at 1037. Grunewald
involved a similar three- to four-year time gap. See
20 UNITED STATES V. TANKE
Grunewald, 353 U.S. at 395–96. Here, by contrast, there was
no such gap, and the September 16 letter was just the tail end
of a series of false and misleading financial transactions and
statements that comprised the embezzlement scheme. Under
the totality of the circumstances, a reasonable jury could have
found that the Cedar Creek cover story was a link in the
fraudulent chain rather than a post-completion coverup. Cf.
Lazarenko, 564 F.3d at 1037.
We note that different jury instructions would have been
helpful. The district court could have instructed the jury that
it had to find that the mailings were sent prior to the scheme’s
completion and that completion of the scheme turned on the
scope of the scheme as devised by Tanke. Had the jury been
so instructed, it might have been more likely to find that the
scheme was completed in July and that the Cedar Creek cover
story was conceived and executed separately. No such
instructions were given, however, and Tanke does not
challenge the instructions provided to the jury. The only
question he raises is whether, judged by the statutory
requirements, a reasonable jury could have found that the
letter of September 16 was sent in furtherance of his
fraudulent scheme. We reject Tanke’s argument that his
conviction on count 2 must be reversed because the scheme
was completed before the September 16 letter was mailed.
3.
We also reject Tanke’s alternative argument that the
September 16 letter cannot support a conviction for mail
fraud because it was sent after Martin had uncovered the
fraud. First, as a factual matter, it is not clear that Martin had
uncovered the full extent of the fraud when the letter was
sent. Second, even if the fraud had been fully exposed, we
UNITED STATES V. TANKE 21
are not aware of any authority supporting the proposition that
a mailing cannot further a fraudulent scheme merely because
the scheme has already been uncovered. To be sure, mailings
that serve only to make detection more likely do not further
the scheme. See Lo, 231 F.3d at 479; United States v.
Manarite, 44 F.3d 1407, 1413 (9th Cir. 1995). But we have
never laid down a categorical rule that post-detection
mailings, if sent before the scheme’s completion, fall outside
the statute. Such mailings can further the scheme by, for
example, persuading the victim that the fraud did not in fact
occur, confusing the issues, discouraging the victim from
going to the authorities or establishing a cover story that
might be helpful at trial.
For the above reasons, we hold that sufficient evidence
supported Tanke’s mail fraud conviction on count 2 of the
indictment, and we affirm the conviction.
B. Bankruptcy Misrepresentation Enhancement
Tanke challenges the district court’s application of a 2-
level sentencing enhancement for making a misrepresentation
during the course of a bankruptcy proceeding. We review the
district court’s interpretation of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v.
Swank, 676 F.3d 919, 921 (9th Cir. 2012). There is an
intracircuit split as to whether the standard of review for
application of the Guidelines to the facts is de novo or abuse
of discretion. See id. at 921-22. There is no need to resolve
this split where, as here, the choice of the standard does not
affect the outcome of the case. See id. at 922.
The United States Sentencing Guidelines Manual
(U.S.S.G.) provides: “If the offense involved . . . a
22 UNITED STATES V. TANKE
misrepresentation or other fraudulent action during the course
of a bankruptcy proceeding . . . , increase by 2 levels.”
U.S.S.G. § 2B1.1(b)(9)(B). Tanke argues that his offense did
not “involve” a misrepresentation because his fraudulent
scheme was completed in 2004, four years before he gave
false testimony in a bankruptcy proceeding.4 Under § 1B1.3,
however, relevant conduct for purposes § 2B1.1(b) includes
all acts committed “during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that
offense.” Id. § 1B1.3(a)(1) (emphasis added). Tanke’s false
testimony in the bankruptcy proceeding may not have
occurred in preparation for or during the commission of the
offense, but it plainly occurred “in the course of attempting
to avoid detection or responsibility for that offense.” Id.;
accord United States v. Rivera-Gomez, 634 F.3d 507, 513
(9th Cir. 2010) (concealing conduct that “occurred long after
the” initial offense is still covered by the Sentencing
Guidelines, because “nothing in the Guidelines establishes
that conduct ceases to be relevant after a specified period of
time”). The district court therefore did not err by applying
the enhancement.
C. Sophisticated Means Enhancement
We also reject Tanke’s argument that the district court
erred by imposing a 2-level enhancement for using
4
Azteca filed for bankruptcy protection in 2004. In 2006, the
bankruptcy trustee sued Tanke to recover embezzled funds. Tanke
testified in that proceeding in 2008, asserting that as vice president of
Azteca he had full authority to settle Azteca’s obligations and, because the
company allegedly owed Cedar Creek money on old invoices, his
diversion of checks was done with authority – testimony that the
bankruptcy court found not credible.
UNITED STATES V. TANKE 23
sophisticated means. Under U.S.S.G. § 2B1.1, “[i]f . . . the
offense . . . involved sophisticated means, increase by 2
levels.” Id. § 2B1.1(b)(10)(C). The commentary describes
sophisticated means as:
especially complex or especially intricate
offense conduct pertaining to the execution or
concealment of an offense. For example, in a
telemarketing scheme, locating the main
office of the scheme in one jurisdiction but
locating soliciting operations in another
jurisdiction ordinarily indicates sophisticated
means. Conduct such as hiding assets or
transactions, or both, through the use of
fictitious entities, corporate shells, or offshore
financial accounts also ordinarily indicates
sophisticated means.
Id. § 2B1.1 cmt. n.9(B). The district court found that this
enhancement applied because “the trial testimony clearly
showed a high level of planning and concealment of
defendant’s theft, much more than simply diverting business
checks into the defendant’s company’s bank accounts for his
personal use as the defendant argues.” The court found that
Tanke, “as vice president of Azteca, carefully engaged in
dozens of various acts over a period of over 16 months to
execute and conceal three separate types of fraud on the
victim and his two business entities.”
Although Tanke did not use “fictitious entities, corporate
shells, or offshore financial accounts,” as the Sentencing
Commission’s commentary contemplates, he created at least
six false invoices and falsified carbon copies of checks in
Azteca’s check register on at least 10 occasions to conceal the
24 UNITED STATES V. TANKE
payments. These means as a whole were sufficiently
sophisticated to support the district court’s decision. See
United States v. Horob, 735 F.3d 866, 872 (9th Cir. 2013)
(per curiam) (affirming the application of the sophisticated
means enhancement because, among other things, the
defendant “fabricated numerous documents” and “the
complicated and fabricated paper trail made discovery of his
fraud difficult”); cf. United States v. Jennings, 711 F.3d 1144,
1145 (9th Cir. 2013) (applying U.S.S.G. § 2T1.1(b)(2))
(“Conduct need not involve highly complex schemes or
exhibit exceptional brilliance to justify a sophisticated means
enhancement.”).
III. CONCLUSION
We affirm Tanke’s conviction on count 2 of the
indictment. We hold that the district court did not err by
imposing sentencing enhancements under U.S.S.G.
§ 2B1.1(b)(9)(B) and (b)(10)(C). We hold, in accord with the
government’s concession, that the district court plainly erred
by including $44,715.21 in restitution for fraudulent credit
card charges and $1,851.38 in restitution for wage
overpayments that were not part of the offenses of conviction
and by failing to note the waiver of interest on restitution on
the judgment. The case is remanded to the district court for
appropriate proceedings.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
UNITED STATES V. TANKE 25
WALLACE, Circuit Judge, concurring:
I concur in the majority’s judgment, but write separately
to point out the opinion’s limited holding and unnecessary
reasoning. First, though the majority uses the term “totality
of the circumstances” as the test to determine whether a
reasonable jury could conclude that a “lulling letter” was part
of the fraud, the opinion actually affirms Tanke’s conviction
based on just one circumstance, the limited period of time
between the completed fraud and the September 16, 2004
lulling letter. That narrow focus wrongly implies a “statute
of limitations” approach to mail fraud liability. Second, the
majority incorrectly dismisses the weight of precedent from
our sister circuits. The reasoning of those courts is more
persuasive than that of the majority, and regardless, rejecting
that reasoning is dicta.
The precise question before us is whether the letter Tanke
sent on September 16, 2004 to conceal his check diversion
scheme violated the federal mail fraud statute. In Section
II.A.1, the majority states that “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.” Infra at 18. To determine when a scheme is
completed, the majority “look[s] to the scope of the scheme
as devised by the perpetrator.” Id. The majority rejects out-
of-circuit decisions that the opinion says “extend liability
further.” Id. at 14. The majority concludes that the
September 16, 2004 letter was part of the scheme “as devised
by” Tanke because under the “totality of the circumstances”
a reasonable jury could plausibly conclude that the letter “was
a link in the fraudulent chain” of Tanke’s scheme. Id. at 20.
26 UNITED STATES V. TANKE
Although the majority uses the term totality of the
circumstances, plural, the opinion cites just one circumstance
to support its conclusion that the September 16, 2004 letter
was “the tail end” of Tanke’s fraud: “there was no such
[three- to four- year] gap” between the letter and the
achievement of the central objectives of scheme when Tanke
diverted the last check. Id. The majority affirms Tanke’s
conviction because only a few months passed between the
last diversion of checks in July 2004 and the September 16,
2004 letter.
I concur with the majority that a lulling letter, sent to
conceal a completed fraud, is mail fraud when under the
totality of the circumstances a reasonable jury could plausibly
conclude the letter was part of the scheme that a defendant
devised.
However, I do not accept two unnecessary aspects of the
majority’s opinion. First, the majority’s narrow focus on the
singular circumstance of the “time gap” between fraudulent
acts and the lulling letter is misleading, because it suggests a
“statute of limitations” approach to liability. Contrary to the
implication of the majority opinion, neither the mail fraud
statute nor our cases set an automatic cutoff date for liability.
The gap between the completion of the fraudulent acts and
the misleading letter is merely one circumstance in our
review of the jury’s decision. The majority offers no reason
why a gap of a few months, by itself, would make the letter
part of the fraud, while a gap of a few years would immunize
a defendant from mail fraud liability. Such line-drawing
immunity is inconsistent with our case law. See United States
v. Mitchell, 744 F.2d 701, 703 (9th Cir. 1984) (a letter is mail
fraud “if the completion of the scheme or the prevention of its
detection is in some way dependent upon the mailings”)
UNITED STATES V. TANKE 27
(emphasis added); Sun Sav. & Loan Ass’n v. Dierdorff,
825 F.2d 187, 196 (9th Cir. 1987) (affirming mail fraud
liability for a misleading letter designed “to prevent the
development of any suspicion” of the defendant, which was
sent on September 26, 1984, more than six months after he
made the final illicit cash deposit on March 15, 1984); cf.
United States v. Lazarenko, 564 F.3d 1026, 1037 (9th Cir.
2009) (reversing wire fraud conviction not simply because of
the three year gap, but because “[n]othing in the evidence
supports an inference, let alone a conviction, on the grounds
that the [concealment] were simply a delayed link in the
fraudulent chain”); accord United States v. Stinson, 647 F.3d
1196, 1215–16 (9th Cir. 2011) (interpreting Grunewald v.
United States, 353 U.S. 391 (1957), to mean that “recent acts
of concealment” can be “in furtherance” of the initial
conspiracy and thus properly part of the initial crime).
Second, the weight of out-of-circuit precedent may well
“extend liability further” than the majority would in certain
cases, because the out-of-circuit cases properly apply the
totality of the circumstances test. See United States v.
Hoffman, 229 F. App’x 157, 158 (3d Cir. 2007) (unpub.);
United States v. Lopez, 71 F.3d 954, 961–62 (1st Cir. 1995)
(affirming wire fraud conviction for deceptive faxes sent
within two years of the fraud), abrogated on other grounds by
United States v. Wells, 519 U.S. 482 (1997); United States v.
Young, 955 F.2d 99, 108 (1st Cir. 1992) (affirming mail fraud
conviction for a deceptive letter sent about one year after the
fraud); United States v. Tocco, 135 F.3d 116, 126 (2d Cir.
1998) (affirming mail fraud conviction for a deceptive letter
sent about four months after the fraud because “[a] factfinder
could reasonably conclude that the [] letter was designed to
. . . defer any complaint to the authorities about the defendant
. . . thus making his apprehension less likely”); United States
28 UNITED STATES V. TANKE
v. Bavers, 787 F.2d 1022, 1027 (6th Cir. 1985) (affirming
mail fraud conviction for letters sent about seven months after
the fraud); cf. United States v. Evans, 473 F.3d 1115, 1121
(11th Cir. 2006) (affirming a wire fraud conviction based on
a misleading fax where defendant’s “motivation [was] to
escape the legal consequences of [his] past frauds”).
Regardless, the majority’s rejection of those cases is dicta
given the actual holding of the opinion.
There are sufficient facts in the record to affirm Tanke’s
conviction under an actual totality of the circumstances
approach. Tanke used “sophisticated means” to conceal his
check diversions, infra at 22–23; he sent emails to justify the
diversions while disbursing money from the account, id. at
6–7; and there was also only a short gap between his last
check diversion and the September 16 letter. Coupled with
the “self-evident proposition that the aim of virtually all
criminal actors, including those who commit mail fraud, is
not only to accomplish their criminal goals, but also to escape
detection and liability for these misdeeds,” Hoffman, 229 F.
App’x at 158, there was sufficient evidence before the jury
that Tanke devised his scheme to “prevent the development
of any suspicion” of his fraud by sending the September 16,
2004 letter, which thus constituted mail fraud. Dierdorff,
825 F.2d at 196.