Teacher Convicted of Bilking Government Out of $60 Million

paying their co-pays. 1311 favara, green wanted to post this information "to make the united states v. anchrum, 2009 wl 5125788, *4 (9th cir. of the contract price that the school was required to pay. see would be forgiven their 10 percent co-pay, and that the con- disparity, since it represents the sentence that most similarly sentence was not unreasonable. included in that cost, the e-rate subsidy rate for which the could afford their co-pays. the conspiracy count was based upon green's relationship schemers, as well as representatives from the school districts impoverished schools across the country, or the mastermind include the violation of a separate law or regulation. in sch- i. wire fraud convictions 8; see also id. at 8-9 ("where one does an act with knowledge [8] there was ample evidence to support the wire fraud tion for green receiving a more severe sentence than her co- defendant argued that odometer tampering was a lesser defendant, a certified public accountant, acted as one of two one that had as its predicate offense the conspiracy as a more than thirty years as a public school teacher in new york a certain course of conduct is violative of the wire fraud stat- [1] we have been unable to find a case in which a court has before imposing sentence. we therefore conclude that green's u.s.c. � 1343), nine counts of bid rigging (15 u.s.c. � 1), transmission need not have been sent by a co-schemer; and dant cashed it and fled. id. reasonably have foreseen the details of her co-conspirators' 1332 united states v. green federal communications commission ("fcc") program that the evidence, the review is deferential, requiring reversal only kaczynski, 551 f.3d 1120, 1123 (9th cir. 2009) ("we review defendant-appellant. with foreign nations, is declared to be illegal." 15 u.s.c. � 1. cover their co-pays out of the inflated profits that expedition thus, her specific challenges fail. green's purported fraud. 1327united states v. green portions of the project directly to the school district until that did not rely on proof of odometer tampering: [14] the defendant was convicted of mail fraud, but chal- within the range of reasonableness. there was ample justifica- tashima, circuit judge: was led to believe that it was lending money to purchase a judge expressly took those circumstances into account when *the honorable lynn s. adelman, united states district judge for the combination in the form of trust or otherwise, or conspiracy, was charged with collusion for only nine. why a sentence within the guidelines range would create a show that petitioners actually mailed or transported anything at the center of this case is a part of the fcc's universal market because of weak credit. the buyer generally was undisputed, green's sufficiency-of-the-evidence argu- other defendants, we concluded that leticia castaneda had [9] this testimony established that both green and favara districts to tell sld that they planned on paying their share the e-rate regulations. accordingly, we reject green's con- upon plain error or to prevent a manifest injustice." united recognize that a correctly calculated guidelines sentence will ranted analysis under the rule of reason). could conclude that green's actions were meant to subvert the ute [marijuana], [mr. hernandez] was accountable for that involved a conspiracy to distribute cocaine and heroin in established circuit precedent, as discussed in part ii, below, lent schemes: she approached the school districts, she orches- gible equipment. she also acknowledged that she took steps no assets. green intended to use the alliance to award bogus of a conspiracy, we believe its holding applies equally in the not required to establish that the scheme separately violated [15] green's second point is more viable. a participant in green does not dispute that bid rigging constitutes an for the foregoing reasons, the judgment of conviction and 1335united states v. green rate's byzantine application process. green marketed her ser- sary, however, that the government prove the sender after the bidding is complete, the school selects the winning states v. sorich, 523 f.3d 702, 707 (7th cir. 2008) ("[g]iven mailing; the mailing underlying his conviction was a check selected vendors. these actions went beyond merely arrang- in advance that they would be selected for e-rate projects, de novo questions of federal constitutional law . . . ."); united evidence for her wire fraud convictions below. "[w]hen a [6] we fail to see the "innocent" explanation that green 1321united states v. green gests that the defendant was engaged in wrongdoing, the gov- unsettled, the debate over the reach of the crime of honest ser- beyond a reasonable doubt." id. 3 odometer tampering includes the element of know- defendant does not preserve a claim of sufficiency of the evi- id. at 741. the eighth circuit rejected this argument, stating: dence at trial easily supported the jury's finding that green eligible for the maximum 90 percent e-rate subsidy. fairly and carefully crafted green's sentence, taking into con- evidence supported counts thirteen and twenty. a rational jury 1337united states v. green 1319united states v. green company look stronger when she was talking to schools." united states court of appeals of the projects' costs, even though they did not. and she his associates. mr. baum's client agreed to buy the duct was not fraudulent because arkansas law permitted him been reduced over time as the home failed to sell; and carefully considered green's particular circumstances explanation is the correct one."). because she was merely national school lunch program. 47 c.f.r. � 54.505. sld is trated the bidding process, and she dictated the equipment that turning to the facts of this case, we agree with the dictated the contents of their bids, and orchestrated matters so for defendant to be guilty of an offense committed vant time period that her conviction violated her due process approached potential contractors to assemble a team capable such a "marginal role" in the conspiracy that she could not ute."); see also sorich v. united states, 129 s. ct. 1308 ment could not prove that his actions were illegal, he argued, for mail fraud where mailing was sent by defrauded car 1325united states v. green [4] we reject green's contention that if we unmoor her green's conduct was eventually discovered by usac. she actions amounted to fraud on the federal government, we green, however, did not challenge the sufficiency of the ate for the crimes green committed, he departed downward in tence in the guidelines range of 97-121 months was appropri- [2] in a related context, the supreme court has also funding. under this scheme, the alliance would purport to ingly, we affirm her conviction on those counts. crime is a question of law reviewed de novo."). we conclude appellant. like the other members of the conspiracy, was prosecuted for 1328 united states v. green can education alliance (the "alliance"), a nonprofit started error, we review for "substantive reasonableness, considering 1318 united states v. green 1042, 1045 (9th cir. 1991). generally, the question whether to support the jury's finding that green engaged in bid rig- 384 f.3d at 1062-63. jury to conclude beyond a reasonable doubt that the latter by the e-rate subsidy. ment contract. 1237, 1245 (9th cir. 2008) (citing louderman and concluding ment the school districts would receive. in baum's formula- which was undisputed, green obtained most of her clients by egories are referred to as "eligible" and "ineligible" equip- green also challenges the sufficiency of the evidence for all 1129 (10th cir. 2009), in which the defendant was charged llamos, 574 f.3d 1206, 1211 (9th cir. 2009). prime contractor, and the smaller, vnci, as subcontractor, on 347 u.s. 1 (1954), the defendant seduced and married a f.3d 881, 895 (9th cir. 2008) ("[w]e have trouble imagining information to achieve that goal. this is sufficient evidence where, as here, financial harm to the victim is an integral part drug-trafficking crime. id. at 763-64; see also 18 u.s.c. a. wire fraud (counts 1-11) devise a scheme to defraud (or to perform specified was convicted of mail fraud based upon his scheme to roll disclose the true nature of the agreements she had reached context of mail and wire fraud. indeed, courts have long the ability to cover the remaining balance of an e-rate proj- tions erroneously gave the jury unfettered discretion to decide lusive, noncompetitive, rigged bids . . . are per se violations scheme (or specified fraudulent acts). the offense of cost of eligible equipment and services, a school must have the e-mail or fax in question would be sent to carry project, the amount of eligible and ineligible equipment fraud must be predicated on a violation of state law. we have ernment in an attempt to induce it to fund her projects. that, to conceal from sld the fact that the schools would not be the mortgage lender, of course, was not informed of government needed only to prove a scheme to defraud; it was deprived the federal government of its right to make an "in- dence, a rational jury could have concluded that vnci had with the goal of providing computers to underprivileged convictions. no plain error occurred. f.2d 489, 498 (5th cir. 1990) (noting "unremarkable proposi- many of the faxes and e-mails alleged in the counts twenty counts charged green with wire fraud and bid rigging support of its position. we implicitly reached this conclusion while discussing co- ity must be predicated on acts that were reasonably foresee- remarked upon the similarities between a conspiracy and the business, or where such use can reasonably be foreseen, even conspirators."); united states v. hernandez, 509 f.3d 1290, cir. 1976); united states v. bush, 522 f.2d 641, 646 n.6 (7th did not benefit the seller because mr. baum prepared wholesale stationers, inc. v. pac. stationery & printing co., were legitimate teaming agreements among companies that already been lenient in his guidelines calculations, resulting ter view, and charged green with defrauding e-rate, a teaming agreement between government contractors war- wire fraud conviction from the e-rate rules and regulations, secure fifteen e-rate projects for expedition networks. as bids based upon green's specifications. ernment must produce evidence that would allow a rational describes. even accepting that her ultimate motives were ations in original)). this case is reminiscent of united states v. baum, 555 f.3d falsified financial overview of the nonprofit. according to although we affirmed the possession convictions of the have felt the need to find limiting principles."), cert. denied, the "bonus" equipment and services green required them to tion that an agreement not to compete between two parties included within the projects' scopes. she instructed the school bers' use of firearms at the time they possessed drugs with competition. by interfering with the competitive bidding pro- in order for the jury to convict green of wire fraud, it had for the ninth circuit green was at the center of each of the fraudulent schemes. lent scheme." united states v. stapleton, 293 f.3d 1111, rather, wire fraud has only three elements: "(1) a scheme to [11] the government's evidence, however, was sufficient its own co-pay. funds, and that the school districts would obtain substantial on the bid-rigging counts. viewing the evidence in the light a scheme to defraud is liable for "acts of mail or wire fraud were committed to the common goal of obtaining the fifteen end of our inquiry. we must next determine whether the error between two vendors where the larger, nec, would act as offense must be one that could be -- could reason- form the project. favara would then funnel a portion of the when a school wants to apply for e-rate funds, it must defendant's conduct violated a specific statute or regulation. baum was convicted of mortgage fraud. one of his argu- background harmless error review); united states v. smith, 561 f.3d 934, argues that the instruction: (1) erroneously stated that the wire green knew the alliance had no assets, but that she nonethe- required to provide at no charge (to the school), and informed review, sld either approves or denies the school's funding nectivity, such as computers, telephones, or fax machines, are is whether there was sufficient evidence that casiano could eastern district of wisconsin, sitting by designation. a reasonable doubt each element of the offense, must also vices to the poorest of schools; almost all of her clients were cient to justify her more severe sentence. see, e.g., united surprisingly, few courts have considered the precise issue the overarching conspiracy to distribute drugs itself; the and as detailed below, the evidence was overwhelming that d.c. no. tractors testified that their companies had planned to bid on [3] based on the above, we believe it is settled that wire ever, "when the restraint falls into a category of agreements october 5, 2009--san francisco, california sideration the circumstances green raises on appeal. 1050, 1062 (9th cir. 2004). in a conspiracy charge, "[t]he ducted a detailed examination of the sentencing guidelines program and, in 1998, left teaching to set up a consulting (3) a specific intent to deceive or defraud." united states v. finally, when the school districts submitted their funding 1331united states v. green fact could have found the essential elements of the crime placed on telecommunications providers (and generally ogy projects. even better, they promised that the schools named company for remodeling or repairing the school districts obtain e-rate funding for significant technol- listed equipment for $x, not $x-$y with the school district gram, or e-rate for short. funded by a universal service fee the use of firearms by the other conspirators in relation to share of the projects' costs. the contractors then submitted ment the agreement, and (3) the requisite intent to commit the lated a separate law or regulation, be it federal or state law. situated defendants are likely to receive."); united states v. 1324 united states v. green odometer tampering are not a subset of the elements contends, her conduct was not criminal. all charges against her. the district court sentenced her to a dictating which vendors would act as subcontractors and what and for advancing the down payment. ing a team of contractors to create a legitimate bid; they that disparities in sentences among co-conspirators did not who spent the years before her conviction working to help "we do not agree that the government, having proved beyond nothing more than helping schools maximize their federal city and los angeles. she saw an opportunity in the e-rate delgado, 357 f.3d at 1068-69 ("[w]hen there is an innocent states v. delgado, 357 f.3d 1061, 1068 (9th cir. 2004). thus, of the offense, there has never been any suggestion that a fur- v. arias-santos, 39 f.3d 1070, 1078 (10th cir. 1994)) (alter- argued and submitted (2) erroneously failed to restrict green's criminal liability to following a nineteen-day trial, a jury convicted green of district received. rather, she challenges the interpretation of that evidence. conspirator liability in united states v. castaneda, 9 f.3d 761 indeed, the government, while proclaiming that green's argu- is charged trustees for a charitable trust. id. at 740. at some point the and a fed- right to fair warning that her conduct was criminal; (2) her support the jury's finding of intent to defraud. the remaining counts all involved an agreement executed chemer knew or could have reasonably foreseen that disadvantaged schools have priority for the remainder of the would be included in the projects. at sentencing, green even concluding that the crime of mail fraud was a distinct crime ago foreclosed the argument that the wire must be sent by a after receiving the bids, the school districts chose green's expected in the course of bidding on and procuring a govern- beyond a reasonable doubt that a rational jury would have ties. see 47 u.s.c. � 254. as its official name implies, e-rate e-rate contracts, and that both agreed to utilize false financial green raises three challenges to her wire fraud convictions, all most favorable to the government, we conclude that the evi- themselves; it is sufficient if they caused it to be done." id. at by the sherman act. finally, green's contention that her sentence was more approaching school administrators at conferences held by the (9th cir. 1996). states v. thongsy, 577 f.3d 1036, 1040 (9th cir. 2009). were not true competitors because vnci was too small and [19] accordingly, while the district court's instruction may be "[n]on-structural constitutional error[ ]" and "therefore defendant convinced his new wife to lend him $35,000 that he schemers. the evidence produced at trial established that in criminal activity, (2) one or more overt acts taken to imple- normally not be found unreasonable on appeal."). "the question whether a trial court's jury instruction omitted part of this process, favara agreed to allow green to become it was required. id. he was convicted of both mail and wire cept of `honest services' is vague and undefined by the stat- a restraint of trade is unreasonable involves a detailed factual which have been determined to be per se illegal. such agree- [13] the above evidence was more than sufficient for a all bids the two acquired. green claims that vnci and nec communications projects at school and libraries. similarly situated). were not competitors. see united states v. mmr corp., 907 129 s. ct. 1308 (2009); united states v. urciuoli, 513 f.3d a new hotel. id. at 5. once he received the check, the defen- first fill out an fcc form, identifying the technology project ting contractors to donate equipment and to waive the portion the defendant. affirm her conviction. of the sherman act."); united states v. reicher, 983 f.2d access." 47 c.f.r. � 54.507(g)(1). the most economically fell within the heart of the anticompetitive conduct prohibited claimed he would use as an advance on the purchase price of f.3d 679, 685 (9th cir. 2009). "evidence is sufficient to sup- believe it was funding something other than what it was actu- contractor on at least one other e-rate project. from this evi- considered the interplay between the fraud statutes3 fraud cases this term to address the reach of the statute. see skilling v. emails or faxes made in furtherance of the schemes; they fell should have therefore been given a lesser-included offense inquiry. id. this case-by-case analysis is unnecessary, how- ects. because green had arranged the bids in advance, her ii. sufficiency of the evidence an addendum to the purchase contract requiring the lars in federal funds was sufficient to bring it squarely within vendors would perform. representatives from both subcon- 20 percent to 90 percent of a project's cost -- determined by fraud. id. at 739. acy and that their own benefits depended on the success of the the heartland of the federal fraud statutes. in such a case, the no principled limit to the reach of the statute. see, e.g., united or incorrectly described an element of the offense." united equipment needed to establish a school's connectivity. end- green also challenges the district court's vicarious liability rejected the argument that the elements of wire or mail fraud instruction. the instruction read as follows: f.3d 627, 630 (5th cir. 2006) ("[c]onspiracies to submit col- contract payments from expedition networks to the alliance, (9th cir. 2007); see also united states v. becerril-lopez, 541 imposing her sentence. despite the fact that he believed a sen- the capability of serving as the prime contractor, and thus was second, because e-rate only subsidizes a portion of the case. first, sld has detailed rules governing what equipment 1333united states v. green application for e-rate funding to sld, specifying the equip- at an additional fifteen school districts. bility, any error was harmless beyond a reasonable doubt. see states v. carter, 560 f.3d 1107, 1121 (9th cir. 2009) (finding intent to defraud. evidence introduced at trial established that to her case. although the law of honest services fraud remains considered the related issue of whether the crime of wire with the vendors. instead, they distorted the full scope of the districts across the country.2 cuit disagreed: "the fraud . . . was that the mortgage lender tial evidence. united states v. hubbard, 96 f.3d 1223, 1226 the school must also have the wherewithal to cover its co- standing alone, is fraud. but mr. baum and his client obtained the consent of fraud does not require proof that the defendant's conduct vio- istrator of the universal service fund, the source of funding for e-rate muck v. united states, 489 u.s. 705 (1989), the defendant participated in multiple bid-rigging conspiracies. laudable, she concealed material facts from the federal gov- the eighth circuit recently reached the same conclusion. cir. 1975). schools. most favorable to sustaining the verdict, no rational trier of we have not previously articulated the standard for "reason- "it is well settled that cases construing the mail fraud and wire fraud wealthy woman by purporting to be "the owner and operator tion, green's actions led sld to believe it was funding the home. apparently unbeknownst to the seller, the with respect to count twelve, a project for the west fresno [of the sherman act]."). instead, she claims that she did not actions were not fraudulent because they were not prohibited involved in every scheme charged in the indictment. further, two vendors that they would act as subcontractors to her cho- defraud." shipsey, 363 f.3d at 971. on appeal, green chal- stitute a violation of these provisions, it is not necessary to example, green admitted to editing equipment lists to prevent in restraint of trade or commerce among the several states, or and the guidelines range exists to ensure national uniformity opinion terms, sld will subsidize the purchase and installation of fraud (18 u.s.c. � 371). because we conclude that green's . . . mr. baum acted as the real-estate agent for the seller to pay the excess over the listed price to a the buyer borrowed that money from mr. baum and 1118-19 (9th cir. 2002). in the mail and wire fraud context, counts brought against her: eleven counts of wire fraud (18 cases also does not render her sentence unreasonable. indeed, of performing the projects to her specifications. green merely to breach of contract, not a crime." id. the tenth cir- received. she even submitted falsified letters to usac court of appeals that the elements of the offense of as with any sizeable program, e-rate is governed by a (9th cir. 2001) (quoting neder v. united states, 527 u.s. 1, ment out of almost $60 million. the government takes the lat- back the odometers on 150 automobiles and sell them to ably be foreseen as a necessary and natural conse- green's first point is incorrect. the supreme court long ("whether a jury instruction misstates elements of a statutory prohibited can nonetheless violate the federal fraud statutes. in united states v. frost, 321 f.3d 738 (8th cir. 2003), the defendant began withdrawing money from the trust for his that the use of the mails will follow in the ordinary course of and services may be purchased with e-rate funds. in general 1978), we disposed of the argument in a single sentence: once hired as a consultant, green helped her clients design 767-68. we therefore vacated all of her convictions except the [7] as in baum, green's fraudulent scheme led sld to to "withdraw reasonable compensation from the trust" with- portions of the projects they would perform. for example, the amorphous and open-ended nature of � 1346, . . . courts sld accepts applications from schools for technology proj- [20] the district court's ninety-month sentence was well severe than those received by defendants in other e-rate otherwise illegal because an agreement not to compete green did more than just arrange "teams." green routinely hide the fact that potentially ineligible equipment was lenges the sufficiency of the evidence as to the first and third section 1 of the sherman act provides: "every contract, intending to devise a fraudulent scheme. insists the former is true, maintaining that she is guilty of the ultimate amount of funding the school seeks from sld. acy and her lack of involvement with the predicate offenses, was not "marginal." she was aware of and intricately pay mr. baum and his associates for their services between two parties who are not competitors is meaning- ects and subsidizes those projects on a sliding scale -- from 1326 united states v. green whole. id. lender (from 5% to 15% of the cost of the home), so equipment, that was ineligible for e-rate funds. needless to sent from a bank in el paso, texas, to a bank in los angeles. quence of the scheme to defraud. cess in this way, there can be little doubt that green's actions school qualifies, and finally, based on the above information, was later indicted in a twenty-two count indictment. the first offense. before: pamela ann rymer and a. wallace tashima, green challenges her conviction, as well as her ninety- sen contractor, as well as what portions of the project both say, a number of school districts leapt on board. v. cr-05-0208-wha nies were at least potential, if not actual, competitors. similar funds. id. three to four times higher than the other bids that the school ment and services to be purchased from each vendor. the actions: "[g]iven leticia's lack of participation in the conspir- [5] that green's e-rate scheme involved millions of dol- ciency of the evidence claims. united states v. overton, 573 service program, known as the schools and libraries pro- of a massive fraudulent scheme that bilked the federal govern- conviction for mail fraud does not depend upon a violation of national alliance of black school educators. at these confer- tention that her conduct needed to violate a rule or regulation spiracy counts based upon uncompleted technology projects united states of america, information about its application. once it has completed its the sentence are affirmed. able to the defendant. although it was decided in the context green first learned of e-rate in the 1990s, after spending company was merely a bank account used to funnel we review questions of law de novo. see united states v. sal service administrative company ("usac")1 to expedition networks in the form of the school's co-pay. her sentence was below the low-end of the guidelines range, (2008) (per curiam) (holding instructional error is subject to those that are unreasonable. united states v. brown, 936 f.2d arranged, and that his school district ultimately selected, was the supreme court has granted certiorari in three honest services 938 (9th cir. 2009) (en banc) (holding instructional error to have reasonably foreseen the use of a gun by his co- the percentage of the school's students that participate in the (2009) (scalia, j., dissenting from denial of certiorari).4 the seller and the seller's agent to list an inflated was a coschemer so long as the government proves formed decision." to support this argument, green invokes able foreseeability." we agree with green that foreseeability underfunded to act as the primary contractor. yet there was form of tangible harm; thus, it has been argued that there is favara agreed to green's request because expedition needed could not afford the down payment required by the the final two counts were con- not eligible for a subsidy by sld. in e-rate jargon, these cat- dealerships). 1330 united states v. green ulations. two program rules are particularly relevant to this in connection with completed e-rate projects at eleven school the business to "breathe financially." sonably foreseeable not only to her, but also to her co- in sentencing. united states v. saeteurn, 504 f.3d 1175, 1181 uses its portion of universal service funding to finance tele- green takes issue with two aspects of this instruction. she chosen contractors had inflated their bids to cover the costs of networks, a technology company that worked with green to port a conviction unless, viewing the evidence in the light with wire fraud based upon a complicated mortgage fraud personal use without the consent of the other trustee, placing make sentences unreasonable because the defendants were not website. further, green proposed to make grants to schools to [21] we also reject green's argument that her sentence was ised that the entire project would be paid for out of e-rate out an essential part of the alleged scheme. opinion by judge tashima "scheme to defraud" element of mail fraud. see, e.g., staple- (1999))). usac is a nonprofit corporation designated by the fcc as the admin- finally, green challenges the sufficiency of the evidence was harmless. see hedgpeth v. pulido, 129 s. ct. 530, 530-32 schemers. no portion of the district court's instructions cor- rational trier of fact to convict green of bid rigging. accord- for publication id. at 721-22. venture." id. the agreement may be inferred from circumstan- for the northern district of california the school district. those funds would eventually be returned 25 n.6 (1987)). [16] castaneda therefore established that vicarious liabil- with distributing e-rate's annual budget of $2.25 billion. agreement need not be explicit; it is sufficient if the conspira- lations. a jury eventually convicted green of all twenty-two favara agreed to let green post on the alliance's website a sld, which posts it on a website to solicit bids from vendors. gal in the sense that the government must also prove that the dealerships in wisconsin. id. at 707, 711. on appeal, the frost appealed his conviction, arguing in part that his con- income, rural, high-cost, or otherwise underserved communi- remodeling or repair work done on the homes . . . amounts lenged his conviction on the ground that he had not made any 22) of the crime of mail fraud. there are two elements shipsey, 363 f.3d 962, 971 (9th cir. 2004). the scheme to "bonus" items for free. these promises were never revealed designed to promote telecommunications access for low- grants to schools to strengthen their applications for e-rate phillip h. stillman, cardiff, california, for the defendant- dant judy green is either a dedicated public schoolteacher adam d. hirsch, antitrust division, u.s. department of jus- conduct -- that she was helping impoverished schools by get- altered school budget information to show that the schools cir. 1986). a defendant's conduct need not otherwise be ille- jury was allowed to convict green based upon what was rea- 168, 170 (10th cir. 1992) ("bid rigging is [a] per se violation therance of the scheme; and (3) a specific intent to deceive or sion. in united states v. louderman, 576 f.2d 1383 (9th cir. application requires the school to set out the total cost of the projects, concealing the added costs and the "bonus" equip- proof of such a violation is not an element of the fraud light of both of the above factors. further, the trial judge had clusion in the wire fraud context. in the related realm of con- sld from learning that the projects included potentially ineli- ingly and willfully causing an odometer to be v. nordby, 225 f.3d 1053, 1059 (9th cir. 2000). castaneda home at the seller's listed price, which often had prove a violation of arkansas law." id.; see also united states iii. vicarious liability instruction of several profitable hotels." id. at 3-5. after the wedding, the instruction was incorrect. as is plain from the instruction, the conceded a four-point organizer enhancement. this was suffi- discussion 1316 united states v. green lates state law"), cert. granted in part, 129 s. ct. 2863 (2009). in light of the fact that much of the evidence against her intent to defraud, much of which was undisputed. green's co- opinion director of grants for the alliance, despite the fact that it had green told them to act as subcontractor. thus, these compa- the true nature of the transaction. 1322 united states v. green ninety-month term of imprisonment. this appeal followed. during the time period charged in the indictment. specifically, 1334 united states v. green school district, there was testimony that green explicitly told in order to convict green of conspiracy to commit mail and which would use the money for the grant it had awarded to with richard favara. favara was the owner of expedition v. williams, 545 f.2d 47, 50 (8th cir. 1976) (per curiam) ("a to find: "(1) a scheme to defraud; (2) use of the wires in fur- who are not actual or potential competitors is not per se or solicit project bids from vendors. at the same time, green the record reveals that the experienced trial judge con- [his] conviction of conspiracy to possess with intent to distrib- depending on whose version of this case you hear, defen- the money to provide cash to the purchaser and to was "unreasonable and unconstitutionally disparate from that compliance with e-rate regulations. occasionally, sld con- which green may have deserved. in short, the trial judge the contractors that the schools would not be paying their required to give funding priority to applications for the provi- 1329united states v. green casiano, 113 f.3d 420, 427 (3d cir. 1997) ("thus, the issue defraud must only include an "affirmative, material misrepre- 1320 united states v. green less had favara post the false financial information on its month sentence. we affirm. 2 green's final contention is that her ninety-month sentence william h. alsup, district judge, presiding 971 n.10 (9th cir. 2004) (citing carpenter v. united states, 484 u.s. 19, each of the wires identified in the indictment were routine convictions relied on regulations that took effect after the con- of the e-rate program in order to be fraudulent. under well- 1315united states v. green sld reviews this detailed application to ensure that it is in states v. romo-romo, 246 f.3d 1272, 1274 (9th cir. 2001) decided what services and equipment the contractors would offense that is per se illegal. see united states v. rose, 449 business to help guide schools and school districts through e- for the jury to find an agreement existed. see montgomery, beyond a reasonable doubt that defendant or a cos- request. funding by exploiting loopholes in the e-rate rules and regu- ensure that the school selected expedition networks to per- 472 u.s. 284, 289-90 (1985)). of which are variations on this common theme: (1) the e-rate though not actually intended, then he `causes' the mails to be � 1), and one count of conspiracy to commit wire and mail ther limitation on the fraud statutes is required. introduced ample evidence of both a scheme to defraud and green contends that there is an "innocent explanation" for her but green was the ringleader and driving force behind the fraudu- 1317united states v. green funds technology projects at schools and libraries. green id. at 8. the supreme court rejected his argument: "to con- green was charged with wire fraud for all eleven of these projects. she committed by co-schemers," provided those acts took place favara testified that in 2002 he worked with green to ally funding. the applications green helped prepare did not less"); see also northrop corp. v. mcdonnell douglas corp., remaining counts were based upon other conspiracy mem- ment, respectively. lars in "bonus" equipment -- equipment, such as end-user engage in bid rigging because the agreements she organized duct charged in the indictment, violating the ex post facto user devices that are needed to actually make use of that con- included offense to the mail fraud charge, and that the jury interfered with arm's length negotiations between contractors, judy green, conclusion tractors would donate to the school districts thousands of dol- green raises: whether actions that are not otherwise expressly to help green convince the school districts to hire her, encouraged that team to fashion its bid without regard to the though no such grants had been made. this was sufficient to c. bid rigging (counts 12-20) that the offense of wire fraud does not require that green's defraud; (2) use of the wires in furtherance of the scheme; and plaintiff-appellee, networks would receive from the e-rate contracts it fraudulent acts), and (2) use of the mail for the pur- sentation." united states v. benny, 786 f.2d 1410, 1418 (9th the legal question of which regulations were in effect during 2009) ("a jury instruction error is harmless if it is ` "clear ducts a follow-up review and asks a school to provide more these offenses was not reasonably foreseeable to her." id. at explanation for a defendant's conduct as well as one that sug- � 924(c). the predicate offense for one of these counts was not ask questions about the projects. if sld did ask questions, we review only for plain error. id. at 1130. home for $x, not to purchase a home for $x-$y and then ging. to begin with, the evidence at trial established that i. the e-rate program pose of executing, or attempting to execute, the altered. this element is not a subset of any element and other universal service programs. see 47 c.f.r. �� 54.5, 54.701-717. wire fraud, the jury had to find: "(1) an agreement to engage b. conspiracy to commit mail and wire fraud (count substantive crime." united states v. montgomery, 384 f.3d subject to harmless error review"). as the trial court noted, the reach of the federal fraud statutes only to conduct that vio- castaneda, held a minor role. id. at 763. leticia castaneda, must be evaluated according to the facts that were known to we find no such manifest injustice here. the government addressed this issue, albeit briefly, on at least one prior occa- competition and decrease output.' " id. (quoting northwest well within the range of ordinary communications to be filed january 22, 2010 to sld. further, green testified about her own role in the 290, 294 (1st cir. 2008) ("the central problem is that the con- dence by failing to make a motion for acquittal at the close of rules and regulations were so poorly set out during the rele- scheme and admitted to much of the charged conduct. for in a guidelines range that was significantly lower than that for which it seeks funding. the school provides this form to ct. 2863 (2009); black v. united states, 129 s. ct. 2379 (2009). tice, washington, dc, for the plaintiff-appellee. state law."); united states v. scallion, 533 f.2d 903, 910 (5th scheme: [10] there was also sufficient evidence that green had the exploiting loopholes in the e-rate application process, green answers that minimized the chances it would follow up with in mail fraud: (1) having devised or intending to 1298 (10th cir. 2007) ("it is well established that, `[u]pon the section does not prohibit all restraints of trade, but only ments are those that `always or almost always tend to restrict the honest services fraud cases, which simply are inapplicable make a grant to a poor school district so the district could ute." id. at 1387; cf. united states v. weyhrauch, 548 f.3d gible equipment that is necessary to make use of the project. carty, 520 f.3d 984, 988 (9th cir. 2008) (en banc) ("[w]e [12] the government's evidence also established that pre-selected contractors to implement their technology proj- ences, green, or one of her co-schemers, promised to help found the defendant guilty absent the error." ' " (quoting ments are obviously incorrect, has not cited a single case in green took steps to ensure that it would be provided with passed along to consumers), the universal service program is 4 green's overarching contention on appeal is that her we have been unable to find a case that reaches this con- requests to sld, green took steps to ensure that sld would pay, that portion of the project's cost that will not be covered counsel by the rules and regulations that governed the e-rate program green controlled the bidding process. she informed vendors and reasonably foreseeable to [him].' " (quoting united states "furthermore, state law is irrelevant in determining whether 1336 united states v. green his convictions for mail and wire fraud should be overturned. in an honest services fraud case that "we have never limited receiving $y worth of extra equipment and was not funding united states, 130 s. ct. 393 (2009); weyhrauch v. united states, 129 s. bid on e-rate projects. he also was the founder of the ameri- she worked with, testified that the school districts were prom- one count of conspiracy to commit bid rigging (15 u.s.c. is the concern that honest services fraud does not require any eral rule or regulation. a number of courts, however, have claim that it had the assets to make its co-pay. green would ment does not focus on the amount of evidence against her. united states v. gracidas-uliberry, 231 f.3d 1188, 1197) what was reasonably foreseeable to her. we review de novo a potential competitor, for this, as well as other projects. drug quantity which was within the scope of the agreement 1257, 1262-63 (9th cir. 1992). which uriel castaneda was a supplier, and his wife, leticia by a coschemer in furtherance of the scheme, the alleged that her sentencing suffered from any procedural ii. the fraudulent scheme clause of the constitution; and (3) the district court's instruc- ect's costs. thus, the school must be able to obtain any ineli- although it is rarely discussed. see, e.g., united states v. [18] although the instruction was erroneous, that is not the instruction. id. at 708-10. the court rejected this argument, complicated and, at times, less than clear set of rules and reg- rected this error. unlike in castaneda, green's involvement in the schemes ments for reversal on appeal was that "the failure to have the totality of the circumstances." united states v. higuera- their technology projects and filled out the sld forms to seeable as a necessary and natural consequence of the fraudu- informing it of grants that the alliance had awarded, even 1 1323united states v. green further review. for example, green wrote equipment lists to provide. one witness, for example, testified that the bid green her conviction will be based on nothing more than her having intent to distribute. id. at 764-66. with an odometer is not identical to devising or member of the scheme to defraud. in pereira v. united states, 705 f.2d 1030, 1050-54 (9th cir. 1983) (concluding that appeal from the united states district court (9th cir. 1993), overruled on other grounds by united states seven counts of possessing a firearm in connection with a sion of "telecommunications services, voice mail, and internet unreasonable in light of her age and background; the trial competition between these vendors. price on the purchase contract. the price inflation used."); schmuck, 489 u.s. at 711-712 (affirming conviction conduct violated a rule or regulation of the e-rate program; the other trustee's name or initials on invoices or checks when evidence introduced at trial that vnci served as the prime claimed to have been a coschemer. it is not neces- no. 08-10149 vices fraud need not detain us. for at the heart of that debate buyer, who was seeking a home loan in the subprime of similarly situated defendants." given that green has not to have been wirings were sent by individuals not that school districts would award their contracts to her pre- statutes are applicable to either." united states v. shipsey, 363 f.3d 962, the schools and libraries division ("sld") of the univer- but one of her counts of conviction. we review de novo suffi- elements. [17] under this standard, the district court's foreseeability circuit judges, and lynn s. adelman,* district judge. out the other trustee's consent. id. at 740. because the govern- "during the life of the scheme and . . . were reasonably fore- tors knew or had reason to know of the scope of the conspir- supply, dictated the "bonus" items the contractors were of mail fraud. knowingly and willfully tampering iv. ninety-month sentence spiracy, however, it appears to be an established rule, have misstated the proper standard of reasonable foreseea- ton, 293 f.3d at 1116-17; united states v. lothian, 976 f.2d bid. based upon its chosen bid, the school submits a detailed undertake $y worth of remodeling or repairs." id. at 1132. according to the evidence introduced at trial, much of