United States v. Tanke

Mailings sent “to avoid detection or responsibility for a fraudulent scheme,” which were sent before the completion of a scheme, are within the mail fraud statute, and the perpetrator’s scope of the fraudulent scheme should be used to figure out when a scheme has finished.

Defendant Thomas Tanke embezzled money from Construction Equipment Rental and Service (“CERS”) and Azteca Construction Company (“Azteca”). Tanke received money for personal expenses by issuing 21 checks from Azteca without authorization. To cover up these payments, Tanke falsified records and tried to make them look like legitimate business expenses. Tanke also issued checks to his consulting business, Cedar Creek Associates. After Tanke left Azteca, he sent a letter to Rafael Martin who operated both Azteca and CERS. The letter stated that Azteca owed Cedar Creek $159,990.95 because Cedar Creek’s bank reversed the charges since Azteca provided “false information.” Martin responded with a letter rejecting the invoice. Tanke was found guilty on two counts of mail fraud and five counts of bank fraud. Tanke argued that the letter to Martin was not part of a fraudulent scheme because he received all the money before he mailed it. A mailing “must be sent prior to the scheme’s completion.” The Ninth Circuit held that mailings sent “to avoid detection or responsibility for a fraudulent scheme” that were sent before the completion of a scheme are within the statute on mail fraud. Also, the panel held that the perpetrator’s scope of the fraudulent scheme should be used to figure out when a scheme has finished. The panel concluded that the letter Tanke sent to Martin could be found by a reasonable jury to be part of the embezzlement scheme and that the letter was sent before the scheme was completed. The panel affirmed the conviction. The panel also concluded that Tanke’s false testimony during bankruptcy was an attempt to avoid detection or responsibility, in addition to his falsified checks and invoices, which were “sufficiently sophisticated to support the district court’s decision” regarding sentencing enhancements. AFFIRMED IN PART, VACATED IN PART, and REMANDED.