892 F.2d 817 (9th Cir. 1989), 87-1289, United States v. Mundi

Docket Nº:87-1289.
Citation:892 F.2d 817
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kuldip Singh MUNDI, Defendant-Appellant.
Case Date:December 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 817

892 F.2d 817 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kuldip Singh MUNDI, Defendant-Appellant.

No. 87-1289.

United States Court of Appeals, Ninth Circuit

December 21, 1989

Argued April 6, 1989.

Submitted June 6, 1989.

Page 818

Michael T. Kenney, Albert A. Newton, Santa Ana, Cal., for defendant-appellant.

Joseph P. Russoniello, Sanford Svetcov, Dept. of Justice, U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges.

REINHARDT, Circuit Judge:

Kuldip Singh Mundi appeals his convictions for twenty-five counts of wire fraud, one count of selling stolen property and one count of conspiracy. The charges stem from a complex scheme, allegedly devised and executed by Mundi, in which he performed unauthorized and fraudulent exchanges of airline tickets purchased in Nigeria for tickets on airlines operating in the United States. He raises a number of objections to the proceedings below. We have considered each and affirm his convictions, except as to one count.

A. The McNally Claim

Mundi claims first that the district court's instructions to the jury on the wire fraud counts failed to conform to the standard established by McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), and Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). 1 We review a claim of error in a jury instruction by looking to "the adequacy of the entire charge ... in the context of the whole trial." United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir.1984). We review de novo the question whether the instructions correctly explained the law and the elements of fraud. United States v. Stenberg, 803 F.2d 422, 433 (9th Cir.1987).

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Considering the fraud instructions as a whole, we note first that there is some language which might imply that the jury could convict Mundi even if it found that his scheme had not been intended to cause anyone a deprivation of money or property. A conviction based upon such a finding would violate McNally. See 483 U.S. at 356, 107 S.Ct. at 2879. We are aware that the district judge said at one point that a "scheme to defraud normally contemplates ... a disadvantage to the defrauded person" and that the injury in this case "could be" the airlines' loss of payment or delay in payment on the tickets Mundi exchanged. Nonetheless, we conclude that the entire instruction rendered it impossible for the jury to convict Mundi without actually finding that he had deprived the airlines of money or property. The court's description of the elements of fraud left no doubt that a verdict of guilty could not be returned unless the jury found that Mundi had "acted to carry out the scheme with the intention of obtaining money or property by carrying out the scheme to defraud."

Moreover, in analyzing a claim of error in jury instructions, we may look beyond the instructions themselves and examine the indictment and the entire trial in context. Marabelles, 724 F.2d at 1382; see also United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975); United States v. Perholtz, 836 F.2d 554, 559 (D.C.Cir.1987). In this case, it is clear from the indictment, as well as from the manner in which the purportedly fraudulent scheme was presented at trial, that the scheme alleged was that Mundi defrauded the airlines of "money or property." The indictment alleged, for example, that Mundi "did devise and intend to devise a scheme and artifice to defraud and deceive in the obtaining of money or things of value 2 by means of false and fraudulent pretenses ...," that he fraudulently obtained air coupons, and that he exchanged altered multiple-page air coupons or invalid coupons for values greater than they were worth.

Furthermore, testimony of airline officials described with some detail how such exchange schemes as those Mundi was accused of operating deprive the airlines of money and...

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