U.S. v. Oren

• Citation: 893 F.2d 1057
• Decision Date: 09 January 1990
• Docket Number: No. 87-5276,87-5276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry OREN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1057

893 F.2d 1057

UNITED STATES of America, Plaintiff-Appellee, v. Jerry OREN, Defendant-Appellant.

No. 87-5276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1988.

Decided Jan. 9, 1990.

Bruce I. Hochman, Hochman, Salkin & DeRoy, Beverly Hills, Cal., for defendant-appellant.

Ralph F. Hirschmann, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

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

O'SCANNLAIN, Circuit Judge:

Oren appeals from his jury verdict convictions of one count of wire fraud and one count of false statement within the jurisdiction of a federal agency. He also appeals from the district court's sentencing order. We affirm the convictions, but we vacate part of his sentence.

I

In 1978, Oren bought 811 acres of undeveloped land in Agoura, California. This property is adjacent to the Santa Monica Mountains National Recreation Area.

In 1982, Oren was approached by a representative from the Trust for Public Lands ("TPL") about selling his land. TPL is a non-profit organization that helps the United States Forest Service, the National Park Service, and other government agencies acquire undeveloped land for public parks. TPL aids these government agencies by either buying the land that an agency wishes to obtain or securing an option on such land, while the agency seeks public funding for the acquisition. In this case, the National Park Service desired Oren's land as an addition to the Santa Monica Mountains National Recreation Area, but had not yet secured funding. TPL therefore hoped to buy Oren's land for later resale to the National Park Service when public funds became available.

In 1983, TPL and Oren agreed to an option on 200 acres of his land. The option agreement set a purchase price of $5 million; the option was to expire on September 30, 1984.

To be able to resell the land to the National Park Service, TPL had to obtain an appraisal of the market value of the land. TPL therefore hired Steve Whittlesey to appraise not only the 200 acres that the July 1983 option agreement covered, but also an additional 136 acres in which TPL had become interested. In August 1984, Whittlesey presented a collective appraisal value of $5.8 million for both the 200 acres under option and the other 136 acres.

Oren was displeased with the low appraisal value and threatened to terminate the sale. TPL thereupon hired another appraiser, Thomas Erickson. In addition, in September 1984, TPL and Oren amended their option agreement. The amended option agreement included the additional 136 acres that TPL wanted and fixed the purchase price for the entire parcel of 336 acres at $7.5 million. The amended option agreement extended the period for exercise to November 15, 1984. This time period was a tight one because an appraisal normally takes six months. However, Oren insisted on the November 15th date because, he said, he had another offer on the land.

In fact, Oren had no other offer. When TPL pressed Oren to forward the offer to the appraiser so that a higher evaluation might result, Oren and two business associates created a false offer letter. The false document purported to be a detailed offer from Union Pacific to purchase all of Oren's 811 acres and contained a subsidiary offer of $9.3 million for the 336 acres TPL wanted. Partially relying on the fabricated Union Pacific offer, on October 3, 1984, Erickson presented TPL and Oren with an appraisal of $8.4 million. Erickson's appraisal referred to the terms of the false Union Pacific offer.

On October 10, 1984, TPL sent a copy of the Erickson appraisal to the National Park Service. Later, the National Park Service requested a copy of the false offer itself; Erickson supplied the letter, but deleted the name of the purported offeror (Union Pacific). Erickson made this deletion in order to comply with Oren's request for confidentiality.

On November 15, 1984, TPL exercised its option to purchase the 336 acres for $7.5 million. Two months later, TPL resold the land to the National Park Service for $8 million.

In 1986, a grand jury indicted Oren on two counts: (1) wire fraud and (2) making a false statement within the jurisdiction of the National Park Service. At trial, the district court excluded evidence relating to the value of the property, Oren's belief as to that value, and the National Park Service's reliance on Oren's false offer letter. Later, the district court instructed the jury that the excluded evidence was irrelevant. At the government's request, the district court instructed the jury that the government must prove that Oren could reasonably foresee that the false statements were within the jurisdiction of the United States. In July 1987, the jury convicted Oren on both counts.

Prior to sentencing, Oren offered to the National Park Service, as an unrestricted gift, twenty acres of his property. When restitution in the amount of $272,000, plus interest, was made a part of his sentence, Oren attempted to have this gift applied in fulfillment of that portion of his sentence. The district court refused Oren's request because it found that Oren's gift was merely an expression of remorse. As of the date of this case's submission on appeal, the Park Service had not yet decided whether to accept the gift.

II

We first consider Oren's conviction of wire fraud under 18 U.S.C. Sec. 1343. ¹ Oren contends that the district court erred in excluding three types of evidence and in giving certain jury instructions. "[W]e review decisions regarding the relevance of evidence for abuse of discretion." United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir.1989). We reject each contention.

A

Oren argues that the district court erred in excluding evidence of the property's value. He offers two reasons that the evidence was relevant; we are persuaded by neither.

First, Oren contends that the government must "show that the defendant actually caused a monetary or property loss to be guilty of mail fraud." Appellant's Opening Brief at 29. For this contention he invokes only the United States Supreme Court decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). As Oren reads it, McNally requires "an actual loss, not just a plan or scheme" to defraud. Appellant's Opening Brief at 33. In short, Oren contends that, after McNally, the mail and wire fraud statutes punish only successful schemes.

We cannot agree with this reading of McNally. The contribution of McNally to mail fraud jurisprudence (if it may be so called) was to establish that there was no property right, for purposes of these statutes, in "honest and impartial government." McNally, 483 U.S. at 355, 107 S.Ct. at 2879. The Court found such "an interest too ethereal in itself to fall within the protection of the mail fraud statute...." Carpenter v. United States, 484 U.S. 19, 25, 108 S.Ct. 316, 320, 98 L.Ed.2d 275 (1987). There is nothing in McNally to support Oren's argument that the case requires "an actual loss, not just a plan or scheme." See United States v. Utz, 886 F.2d 1148, 1149-50 (9th Cir.1989) (specifically rejecting a reading of McNally which provided that "a scheme to defraud must succeed before it can form the basis of a mail fraud prosecution").

Because Oren's reading of McNally cannot stand, so, too, falls his argument that wire fraud requires a government showing that the defendant caused an actual loss of money or property. This argument therefore cannot serve as a basis for his contention that the district court erred in excluding evidence of the property's value.

Oren presents a second, more problematic, argument that the district court erred in excluding evidence of the property's value. He contends that the evidence was relevant because, even if the government did not have to show that he caused actual loss, it at least had to show that he intended to cause actual loss. He derives this notion from the phrase "intending to devise any scheme or artifice to defraud" in the wire fraud statute. 18 U.S.C. Sec. 1343. In Oren's view, "to defraud" is "to cause injury from the loss of property or money for less than fair market value." Appellant's Opening Brief at 29 (emphasis added). Without evidence of the property's value, the argument concludes, it cannot be known whether Oren intended that TPL pay more than fair market value for the property or, in other words, whether he intended that TPL be defrauded. In short, Oren argues that if he had been allowed to, and able to, establish that TPL paid no more than fair market value for the property, this would have precluded any conclusion that TPL was defrauded.

If we could agree with Oren's contention that "to defraud" is only "to cause injury from the loss of property or money for less than fair market value," we would also share his view that the excluded evidence of value was relevant. But we see it otherwise.

"To defraud," as used in the mail and wire fraud statutes, has a broader meaning. Twice in the past several years, the Supreme Court has undertaken to explain it for us. See McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). In Carpenter, the Court summarized its teachings on the meaning of "to defraud" as used in the mail and wire fraud statutes:

Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words "to defraud" in the mail fraud statute have the "common understanding" of "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."

Id. at 27, 108 S.Ct. at 321 (quoting McNally, 483 U.S. at 358...