USA v. Kathryn Jasen

Filing

Opinion issued by court as to Appellants Glenn Jasen and Kathryn Jasen. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. 16-10583X

Case: 16-10582

Date Filed: 05/19/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10582
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00214-JDW-TBM-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN JASEN
KATHRYN JASEN,
Defendants-Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
________________________
(May 19, 2017)
Before MARCUS, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:

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Glenn and Kathryn Jasen appeal their convictions of wire fraud, in violation
of 18 U.S.C. § 1343. They contend the district court erred by denying their motion
to dismiss the indictment because the application of the wire fraud statute in this
case violates the principles of fair warning and federalism. They also argue the
district court erred by denying their motion for judgments of acquittal because the
evidence is insufficient to convict them of wire fraud. After review, 1 we affirm.
I. DISCUSSION
The Jasens contend § 1343 fails to give fair warning that it covers their
conduct. Specifically, they assert the statute is unconstitutionally vague as applied
to them, that the rule of lenity exempts them from the statute, and that applying the
statute to their circumstances violates due process because it would constitute a
novel construction. Each of these arguments fails.
Section 1343 embraces their conduct as it applies to “any” scheme or artifice
to defraud, regardless of the type of scheme. See 18 U.S.C. § 1343; United States
v. Svete, 556 F.3d 1157, 1162 (11th Cir. 2009) (en banc) (stating that the word
“any” is read naturally to have an expansive meaning). The fact that it does not
specifically mention real estate transactions does not warrant the conclusion that it
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We review de novo a challenge to the constitutionality of a statute, applying a strong
presumption that the statute is valid. United States v. Ruggiero, 791 F.3d 1281, 1284 (11th Cir.),
cert. denied, 136 S. Ct. 429 (2015). We also review de novo questions of statutory interpretation.
United States v. Taylor, 818 F.3d 671, 674 (11th Cir.), cert. denied, 137 S. Ct. 387 (2016). We
review de novo the denial of a motion for judgment of acquittal. United States v. Green, 842
F.3d 1299, 1305 (11th Cir. 2016). In doing so, we view the evidence in the light most favorable
to the government and draw all reasonable inferences in favor of the jury’s verdict. Id.
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is vague as applied to the Jensens. United States v. Nelson, 712 F.3d 498, 508
(11th Cir. 2013) (stating that the vagueness doctrine does not require a statute to
define every factual situation that may arise). Nor is the causation element vague;
we have referred to the meaning of the word “causes” in the wire fraud statute as
“self-explanatory.” United States v. Bradley, 644 F.3d 1213, 1238–39 (11th Cir.
2011) (noting that mail fraud and wire fraud “are analytically identical save for the
method of execution”); see also United States v. Kenofskey, 243 U.S. 440, 443
(1917) (stating, in the context of mail fraud, that “‘[c]ause’ is a word of very broad
import and its meaning is generally known”). Finally, the statute’s scienter
requirement alleviates the Jasens’ concern about vagueness and limits the potential
for arbitrary enforcement. See McFadden v. United States, 135 S. Ct. 2298, 2307
(2015); Nelson, 712 F.3d at 510.
Nor does the rule of lenity apply here—the statute is clear. United States v.
Hastie, No. 15-14481, 2017 WL 1455948, at *5 (11th Cir. Apr. 25, 2017) (“[T]he
rule of lenity has no application when the statute is clear.” (quotation omitted)).
The rule of lenity applies “if at the end of the process of construing what Congress
has expressed, there is a grievous ambiguity or uncertainty in the statute.” Shaw v.
United States, 137 S. Ct. 462, 469, 196 L. Ed. 2d 373 (2016) (quotations omitted).
The Jasens do not convincingly point to any such ambiguity.

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In addition, the Jasens’ assertion that the application of the wire fraud statute
in this case violates their rights to due process is meritless. Although the Jasens
argue to the contrary, caselaw gives reasonable warning that the statute
criminalizes a fraud in connection with a real estate transaction. See, e.g., Robers
v. United States, 134 S. Ct. 1854, 1856 (2014) (addressing a conviction of
conspiracy to commit wire fraud where the defendant submitted fraudulent
mortgage loan applications to purchase two houses); United States v. Martin, 803
F.3d 581, 588–90 (11th Cir. 2015) (determining that the evidence was sufficient to
convict the defendant of wire fraud where she sold an apartment to her father in a
“sham sale,” assisted him in completing a fraudulent mortgage loan application,
and lied in her own mortgage loan application to purchase a house); United States
v. Brester, 786 F.3d 1335, 1337 (11th Cir. 2015) (addressing convictions of wire
fraud and conspiracy to commit wire fraud where the defendant sold apartments
and made misrepresentations to the banks to which the buyer had applied for
mortgage loans). In sum, the district court did not err by denying the Jasens’
motion to dismiss based on their fair warning claim.
The Jasens’ federalism argument is also without merit. Despite the Jasens’
assertion that their conduct occurred locally, the Commerce Clause permits
Congress to criminalize a local, intrastate act if a channel of interstate commerce

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(here, the telecommunications network) is used to facilitate the commission of the
act. United States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005) (en banc).
Finally, the Jasens contend there was insufficient evidence to find them
guilty beyond a reasonable doubt, but this argument fails as well. Wire fraud
requires that a person (1) intentionally participate in a scheme or artifice to defraud
another of money or property and (2) use or cause the use of wires for the purpose
of executing the scheme or artifice. Bradley, 644 F.3d at 1238. The phrase
“scheme or artifice to defraud . . . requires proof of a material misrepresentation, or
the omission or concealment of a material fact calculated to deceive another out of
money or property.” Id. (quotation omitted). A person causes wires to be used if
he acts with knowledge that the use of wires “will follow in the ordinary course of
business, or where such use can reasonably be foreseen, even though not actually
intended.” Id. at 1239 (quotation omitted); see also United States v. Hasson, 333
F.3d 1264, 1273 (11th Cir. 2003) (stating that the “transmission itself need not be
essential to the success of the scheme to defraud”).
It is undisputed the Jasens knew their property had a sinkhole on it when
they sold the property —they had already collected over one hundred fifty
thousand dollars in insurance proceeds because of it. Nevertheless, they indicated
on their disclosure statement that they knew of no sinkhole on the property. They
reiterated this misrepresentation in multiple transaction documents and the
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purchaser relied on these statements in acquiring the property, testifying he would
not have done so had he known of the sinkhole. This evidence, taken in the light
most favorable to the Government, demonstrates that the Jasens intentionally made
material misrepresentations concerning their property that were calculated to
deceive the buyer into purchasing the property. See Bradley, 644 F.3d at 1239
(“All that is necessary is that the scheme be reasonably calculated to deceive; the
intent element of the crime is shown by the existence of the scheme.”).
Similarly, there was sufficient evidence to show the wire transfer was used
for the purpose of executing the Jasens’ scheme or artifice to defraud. Selling the
property and receiving sale proceeds were essential elements of their scheme, and
the wire transfer was the means by which they were able to receive the “fruits of
the fraud.” United States v. Adkinson, 158 F.3d 1147, 1163 (11th Cir. 1998)
(relating to mail fraud statute). Although a wire transfer may not have been
essential to the success of the Jasens’ scheme, as the buyer could have paid for the
property by means other than an out-of-state loan, the wire transfer was incident to
an essential part of the scheme, namely the receipt of sale proceeds. See Schmuck
v. United States, 489 U.S. 705, 710–11 (1989) (relating to mail fraud statute);
Hasson, 333 F.3d at 1273.

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II. CONCLUSION
For the foregoing reasons, the Jasens’ convictions are
AFFIRMED.

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