Mail, Wire Fraud Convictions Based on "Reasonably Foreseeable" Use of Mails, Internet, Affirmed

United States v. Weiss, ___ F.3d ___ , 2010 WL XXX (10th Cir. 2010) (Colo). Previously unpublished case. In mail and wire fraud convictions for bogus home loan schemes, defendant was properly charged with mail fraud because the mailings were reasonably foreseeable, even if he did not perform the actual mailings. The mailings were part of an ongoing scheme and therefore did not occur only after the fruition of each sub-part of the fraudulent scheme. Also, D could have reasonably foreseen that the internet would have been used in the scheme (the wire fraud counts) even though there was no direct evidence that he knew that a particular transmission program would be used.

The COA suggests it would not be witness tampering in violation of 18 U.S.C. § 1512(b) to suggest to witnesses that they not disclose evidence to investigators. But here the government proved the D suggested the witnesses lie.

Because the tampering regarding the fraud offenses took place after the guidelines got worse for fraud, it was not a violation of the Ex Post Facto Clause to apply the newer, worse guidelines, even though the frauds took place before the guideline worsening.