Moore v. U.S.

17 Citing cases

  1. Messinger v. U.S.

    872 F.2d 217 (7th Cir. 1989)   Cited 33 times
    Finding McNally error harmless

    Because the appellant is seeking post-conviction relief, we review the evidence and draw all reasonable inferences from it in the light most favorable to the government. See United States v. Cosentino, 869 F.2d 301, 302 (7th Cir. 1989); Moore v. United States, 865 F.2d 149, 151 (7th Cir. 1989); United States v. Gimbel, 830 F.2d 621, 622 (7th Cir. 1987). Messinger, an attorney, was charged in a one-count indictment with mail fraud in violation of 18 U.S.C. § 1341.

  2. Toulabi v. U.S.

    875 F.2d 122 (7th Cir. 1989)   Cited 32 times
    Holding that city not deprived of property because "[a]ccepting bribes to issue licenses did not deprive Chicago of property; it fattened the City's treasury by $50 (the license fee) for each extra license issued."

    Because the "jury instructions did not allow conviction based on the intangible rights theory alone nor as an alternative to the money or property requirement," Id. at 159, the court denied petitioners' motion to vacate their convictions under section 2255. The same analysis was used by the court in Moore v. United States, 865 F.2d 149 (7th Cir. 1989). In considering a petition for post-conviction relief under section 2255, the court stated that it was required to consider "the evidence, the indictment and the instructions."

  3. Brown v. Vanihel

    7 F.4th 666 (7th Cir. 2021)   Cited 7 times

    Federal courts reviewing federal convictions can, of course, reinstate, or instruct lower federal courts to reinstate, a vacated federal conviction. United States v. Gochis , 256 F.3d 739, 747 (7th Cir. 2001) (reversing district court's vacatur of conviction and reinstating magistrate judge's final judgment); Moore v. United States , 865 F.2d 149, 154 (7th Cir. 1989) (reversing district court's grant of habeas corpus petition and vacatur of conviction with instructions to reinstate). There were paths available to the State that could have avoided this result, but the State chose not to take them.

  4. U.S. v. Heffernan

    43 F.3d 1144 (7th Cir. 1994)   Cited 21 times
    Recognizing the need for significant penalties to compensate for the rewards and difficulty of detecting economic crimes

    Before the guidelines were promulgated (and since, in cases that do not involve sentencing), the term "bid rigging," though much bandied about in antitrust cases, did not denote a distinct offense. It was merely a descriptive term for a subset of price-fixing cases, so no one bothered with a careful definition. Nevertheless, for what it is worth, we point out that the vast majority of cases in which the term has appeared have treated it as a synonym for bid rotation. See, e.g., United States v. Broce, 488 U.S. 563, 565, 577, 109 S.Ct. 757, 760, 766, 102 L.Ed.2d 927 (1989); United States v. Ward Baking Co., 376 U.S. 327, 328, 332, 84 S.Ct. 763, 765, 767, 11 L.Ed.2d 743 (1964); United States ex rel. Marcus v. Hess, 317 U.S. 537, 539 n. 1, 63 S.Ct. 379, 382 n. 1, 87 L.Ed. 443 (1943); United States v. Alex Janows Co., 2 F.3d 716, 718 (7th Cir. 1993); Moore v. United States, 865 F.2d 149, 151 (7th Cir. 1989); United States v. Walker, 653 F.2d 1343, 1345 (9th Cir. 1981); United States v. All Star Industries, 962 F.2d 465, 470, 472 (5th Cir. 1992); United States v. MMR Corp., 907 F.2d 489, 493 (5th Cir. 1990); United States v. Pippin, 903 F.2d 1478, 1479 (11th Cir. 1990); New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1084 (2d Cir. 1988). We have mostly cited recent cases but could cite as many decided before the antitrust guideline was promulgated on November 1, 1987. Consistently with the fact that the antitrust guideline equates "noncompetitive bids" to "bid rigging," many of the cases we have cited, and others we could cite, use the terms interchangeably to mean bid rotation.

  5. U.S. v. Saks

    964 F.2d 1514 (5th Cir. 1992)   Cited 98 times
    Holding that a fraudulent loan transaction exposed financial institutions and lenders to risk of loss even though the loan was "secured, and [defendants] assumed a legal obligation to repay it."

    This court and others have considered McNally error on many occasions, and have found the error reversible or harmless depending on the facts of the case. Compare Marcello, 876 F.2d at 1153; Huls, 841 F.2d at 111-12; United States v. Lew, 875 F.2d 219, 221-22 (9th Cir. 1989); United States v. Ochs, 842 F.2d 515, 525-27 (1st Cir. 1988); United States v. Shelton, 848 F.2d 1485, 1496-97 (10th Cir. 1988); United States v. Zauber, 857 F.2d 137, 144-48 (3d Cir. 1988); United States v. Mandel, 862 F.2d 1067, 1072-74 (4th Cir. 1988) (reversing on the basis of McNally error) with United States v. Richerson, 833 F.2d 1147 (5th Cir. 1987); United States v. Fagan, 821 F.2d 1002, 1010-11 (5th Cir. 1988); United States v. Madeoy, 912 F.2d 1486, 1492-93 (D.C. Cir. 1990); United States v. Asher, 854 F.2d 1483, 1487-96 (3d Cir. 1988); United States v. Doherty, 867 F.2d 47, 57-60 (1st Cir. 1989); United States v. Moore, 865 F.2d 149, 152-54 (7th Cir. 1989); United States v. Messinger, 872 F.2d 217, 224 (7th Cir. 1989) (finding McNally error harmless). The Third Circuit has explained that "[a]lthough the outcomes in the post- McNally cases ... vary depending on the facts, indictments, and jury instructions of the particular case, a common thread running through each of these cases can be discerned.... [T]hose cases that have sustained mail fraud convictions [despite McNally error] have done so where the "bottom line" of the scheme or artifice had the inevitable result of effecting monetary or property losses to the employer or to the state."

  6. U.S. v. Ames Sintering Co.

    927 F.2d 232 (6th Cir. 1990)   Cited 24 times   2 Legal Analyses
    Holding that a corporation can be criminally convicted for conspiring with its officers

    While this court is aware of the fact that many bid-rigging cases are brought under the Sherman Act, we find that the actions of the appellants, in this case, constitute a violation of the wire fraud statute, 18 U.S.C. § 1343. Indeed, the government has prosecuted bid-rigging schemes without invoking the Sherman Act. See Moore v. United States, 865 F.2d 149 (7th Cir. 1989); United States v. Asher, 854 F.2d 1483 (3d Cir. 1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989). Accordingly, the Copperweld holding is inapplicable in this case.

  7. Ginsburg v. U.S.

    909 F.2d 982 (7th Cir. 1990)   Cited 12 times

    Ginsburg insists that the jury could not have concluded that the scheme resulted in a deprivation of property interests because the indictment and other relevant instructions spoke only in terms of the intangible right to good government and faithful services. The presence of intangible rights language in jury instructions alone does not warrant relief under section 2255. E.g., Doe, 867 F.2d at 989-90 (conviction upheld although instructions contained intangible rights language in its definition of scheme to defraud); Moore v. United States, 865 F.2d 149, 153 (7th Cir. 1989) (same). Additionally, we have upheld convictions where the scheme to defraud was defined in terms of depriving another of "something of value" by fraudulent means and where the jury was not instructed that only property rights could constitute something of value.

  8. U.S. v. Barber

    881 F.2d 345 (7th Cir. 1989)   Cited 25 times
    Holding that defendant's mailing of false recommendation letters to U.S. Attorney's Office on behalf of another defendant was covered by § 1001 because facts presented "a unique setting and one ill-suited to regulation through the perjury statutes" and because sentencing recommendations are within jurisdiction of U.S. Attorney's Office

    McNally has been reviewed extensively by this court. See, e.g., Lombardo v. United States, 865 F.2d 155 (7th Cir. 1989); Doe, 867 F.2d at 988-89; Moore v. United States, 865 F.2d 149 (7th Cir. 1989); United States v. Bailey, 859 F.2d 1265 (7th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989); Keane, 852 F.2d at 205; Ward v. United States, 845 F.2d 1459 (7th Cir. 1988); United States v. Eckhardt, 843 F.2d 989 (7th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 106, 102 L.Ed.2d 81 (1988); United States v. Gimbel, 830 F.2d 621 (7th Cir. 1987). Our cases manifest a single principle: McNally holds that mail fraud convictions must be based on schemes to defraud money or property.

  9. U.S. v. Bucey

    876 F.2d 1297 (7th Cir. 1989)   Cited 60 times
    Affirming conviction of defendant who tampered with a fictional witness to a grand jury proceeding

    Nevertheless, since the mail fraud statute punishes the scheme to defraud, this court has reiterated on numerous occasions that the ultimate success of the fraud and the actual defrauding of a victim are not necessary prerequisites to a successful mail fraud prosecution. See Moore v. United States, 865 F.2d 149, 153 n. 1 (7th Cir. 1989); Ward v. United States, 845 F.2d 1459, 1462 (7th Cir. 1988); United States v. Keane, 522 F.2d 534, 545 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976). Consequently, the fact that the government was not actually deprived of tax revenues does not warrant reversal of Bucey's conviction.

  10. U.S. v. Wilkus

    875 F.2d 649 (7th Cir. 1989)   Cited 7 times

    This scheme is not, as Wilkus contends, simply usurpation by an employee of an opportunity already declined by his employer, but rather is a garden-variety fraud, akin — if not identical — to bid-rigging. Had Wilkus, the purchasing agent, conspired with a seller to rig a bidding process and then split the inflated profits from the sale, without doubt CME would be deemed to have suffered a tangible loss. See, e.g., Moore v. United States, 865 F.2d 149 (7th Cir. 1989). It is entirely disingenuous for him now to argue that simply because he was both purchasing agent and seller, and thus retained all the profits inuring from the sales occasioned by his unilateral acts as opposed to having to split the profits with a co-conspirator, he did not deprive CME of money, but only exploited an opportunity known and declined. The constructive trust instruction, aside from being cured by the remaining instructions, was superfluous because according to his own testimony, Wilkus' profits stemmed from a fraudulently inflated price.