U.S. v. Diwan, 87-3861
| Decision Date | 30 January 1989 |
| Docket Number | No. 87-3861,87-3861 |
| Citation | 864 F.2d 715 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ruksana DIWAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David T. Weisbrod, Tampa, Fla., for defendant-appellant.
Ann Frances Carpini, Asst. U.S. Atty., Tampa, Fla., Karen Skrivseth, Criminal Div.-App. Sect., Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, Chief Judge, COX, Circuit Judge, and MORGAN, Senior Circuit Judge.
Found guilty of mail fraud and conspiracy, Ruksana Diwan appeals, asserting as grounds for reversal: (1) that the indictment does not allege that the scheme to defraud caused a deprivation of money or property within the meaning of the mail fraud statute; and (2) that the district court lacked the requisite personal jurisdiction to enter a judgment of conviction on Count I of the indictment, the conspiracy count. Finding no merit in either of these contentions, we affirm.
Diwan pleaded guilty to all counts of an indictment charging her with an 18 U.S.C. Sec. 371 conspiracy to persuade a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, in violation of 18 U.S.C. Sec. 2251, 1 and with eighteen incidents of mail fraud, each in violation of 18 U.S.C. Sec. 1341. 2 The plea was entered conditionally pursuant to Fed.R.Crim.P. 11(a)(2); Diwan specifically reserved the right to appeal the district court's denial of her motion to dismiss the indictment, which raises the issues that this court will address forthwith.
At the Fed.R.Crim.P. 11 hearing, the government recounted the evidence that would come to light if the case proceeded to trial. Briefly, Diwan, together with Mervyn Harold Cross and Robert Carter The Burn's Agency contacted the mothers of several girls it thought might be interested in such a role. Diwan and Cross also contacted these mothers via the United States mail. The letters promised that the girl selected to portray Susan, and her mother, would receive substantial income and the opportunity to travel the world, all expenses paid. Also explained were the scenes involving nudity, the requirement that the girls not be modest, and the need for nude photographs as part of the audition.
Lodge, 3 established an elaborate facade to obtain photographs of nude, pre-adolescent girls. The purpose of this contrivance was to gratify the deviate sexual yearnings of Cross and Lodge. Under the rouse of producing a television documentary, preliminarily entitled "Susan's Magic Carpet," Cross contacted the Burn's Talent Agency, at times by letters delivered by employees of the United States Postal Service, seeking eight to eleven year old girls to audition for the title role in the film. Susan's carpet was to travel to certain countries of the world where nudity is an integral part of the culture. In order to accurately portray life in these countries, there would have to be scenes of Susan unclothed. Susan could not be shy. Accordingly, Cross told the Burn's Agency that he wanted the aspiring young actresses photographed in the nude. One could not, after all, be seen in a Turkish bath or Swedish sauna fully clothed. Burn's was promised a commission of ten percent.
Thereafter, the co-conspirators contacted photographer Dean Cason, at least once by mail, about photographing the girls auditioning for the roles in "Susan's Magic Carpet." Arrangements were made and the pictures were taken. Diwan delivered the pictures to Cross, who shared them with others, and, later, to Lodge.
Throughout the planning and implementation of this scheme, Cross was an inmate in the Florida prison system; he was serving a twenty-eight year sentence for a conviction involving lewd acts with a child. In order to facilitate Cross' communication with the outside world, Diwan obtained call forwarding and conference call services on her personal phone in St. Petersburg. Cross would phone Diwan, collect, and Diwan would phone the desired third party, making a connection between Cross and the unsuspecting conversant. She also received mail for Cross, smuggling it into the prison whenever necessary. Thus, the victims of this offense never knew that they were dealing with a devious inmate rather than a legitimate film producer.
Diwan raises two issues. Initially, she asserts that the indictment is deficient in that the paragraphs charging mail fraud do not state an offense under Sec. 1341. Specifically, Diwan argues that the indictment fails to allege that the scheme to defraud involved a deprivation of money or property, which is a necessary element of the crime under the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). We are unpersuaded by this argument.
The rule of law discernible from McNally is that the mail fraud statute does not apply to schemes to defraud citizens of their intangible right to honest government. Id. 107 S.Ct. at 2879. But, in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), a unanimous Court clarified McNally, opining that Sec. 1341 is applicable to schemes designed to defraud a victim of intangible property rights. Id. 108 S.Ct. at 320. Thus, "the only fraudulent schemes exempt from the mail fraud statute are those involving intangible, non-property, non-monetary rights." United States v. Dynalectric Co., 859 F.2d 1559, 1569 (11th Cir.1988).
Does the conspiracy involved in this case fall within McNally's proscription? To answer this question, we must consider the We turn to the indictment, which, in this case, charges that:
and others known and unknown to the grand jury having knowingly and wilfully devised and intended to devise a scheme and artifice to defraud did knowingly cause to be delivered by mail according to the direction thereon a writing for the purpose of executing said scheme and artifice to defraud.
2. As part of said scheme and artifice to defraud the Defendant Mervyn Harold Cross represented himself to be a movie producer who was searching for pre-adolescent females to play a starring role in a television or movie production.
3. It was further a part of said scheme and artifice to defraud that the Defendant Mervyn Harold Cross with the assistance of the Defendant Ruksana Diwan operated a patch telephone system at a St. Petersburg address in order to conceal the fact that the Defendant Mervyn Harold Cross was originating the telephone calls while incarcerated in the Florida State Prison System.
4. It was further a part of said scheme and artifice to defraud that the Defendants Mervyn Harold Cross and Ruksana Diwan contacted a talent agency and falsely stated that they were looking for pre-adolescent females to act in a legitimate production known as "Susan's Magic Carpet." They requested that the talent agency send them photographs of pre-adolescent females so the Defendant Mervyn Harold Cross could select from these photographs the minors he wished to consider for a starring role in his production.
5. It was further a part of said scheme and artifice to defraud that the Defendants Mervyn Harold Cross and Ruksana Diwan represented to the talent agency as well as to the parents of the pre-adolescent girls that they would have to travel to such countries as Japan and Finland, as well as other countries, and that some nude sequences would be required in order to accurately depict life in those countries.
6. It was further a part of said scheme and artifice to defraud that the parents of the children were told that the girl or girls selected could achieve stardom and financial success.
7. It was further a part of said scheme and artifice to defraud that the Defendants Mervyn Harold Cross and Ruksana Diwan would enlist a commercial photographer to take photographs of the children both clothed and unclothed.
8. It was further a part of said scheme and artifice to defraud that the Defendants never intended to produce a legitimate movie or television documentary entitled "Susan's Magic Carpet" nor did they intend for the children to be legitimate "stars" nor did they intend for the children to gain financial success from this venture. The true nature of the venture was to use the pre-adolescent females for the personal gratification of one or more of the defendants as well as others both known and unknown to the grand jury. The personal gratification would either be gained directly from the females or from photographs taken of the pre-adolescent females.
9. It was further a part of said scheme and artifice to defraud that the Defendant Mervyn Harold Cross in order to conduct this scheme and artifice to defraud used "legal mail" to receive and distribute correspondence while in prison through the good offices of an attorney licensed to practice law in the State of Florida.
10. It was further a part of said scheme and...
To continue reading
Request your trial
-
State v. Pang
...15 Stat. 631), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972).76 Andonian, 29 F.3d at 1435; accord United States v. Diwan, 864 F.2d 715, 721 (11th Cir.) ("[T]he objective of the rule [of specialty] is to insure that the treaty is faithfully observed by the contracting part......
-
U.S. v. Falcone, 89-5718
...to bank in connection with loan application), cert. denied, --- U.S. ----, 110 S.Ct. 233, 107 L.Ed.2d 184 (1989); United States v. Diwan, 864 F.2d 715 (11th Cir.) (conspiracy to persuade minor to pose for sexually explicit photographs in violation of 18 U.S.C. Sec. 2251 (1984)), cert. denie......
-
United States v. Day
...would have been entitled to raise.” United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir.1988); see also, e.g., United States v. Diwan, 864 F.2d 715, 721 (11th Cir.1989). Because we conclude that Day's specialty argument fails on the merits, however, we need not resolve the government's st......
-
U.S. v. Riviere, s. 90-3128
...in that case, the court concluded that Switzerland had consented to prosecution on other crimes. 785 F.2d at 1422. In United States v. Diwan, 864 F.2d 715, 721 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3249, 106 L.Ed.2d 595 (1989), the Court of Appeals for the Eleventh Circuit hel......