United States v. Dowling

43 Citing cases

  1. Dowling v. United States

    473 U.S. 207 (1985)   Cited 242 times   6 Legal Analyses
    Holding that "a non-disclosure can only serve as a basis for a fraudulent scheme when there exists an independent duty that has been breached by the person so charged," such as a fiduciary or statutory duty

    Pp. 226-227. 739 F.2d 1445, reversed. BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.

  2. United States v. Santoro

    647 F. Supp. 153 (E.D.N.Y. 1986)   Cited 43 times   1 Legal Analyses
    In United States v. Russo, 647 F.Supp. 153, 188 (E.D.N.Y. 1986), rev'd on other grounds Davidoff, 845 F.2d 1151, the court ordered the Government to provide particulars on the nature of the inside information upon which the defendants were alleged to have traded when the indictment charged that one defendant provided to his codefendants confidential, MNPI. regarding a merger.

    Courts have distinguished between mail fraud schemesinvolving active misrepresentation and those involving nondisclosure or concealment of information the defendant is obligated to disclose. See, e.g., United States v. Dowling, 739 F.2d 1445, 1448-49 (9th Cir. 1984), rev'd in part on other grounds, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). The Barone note could be regarded as falling in the first category in that it contained an affirmative statement that Barone was not the buyer of the bonds.

  3. U.S. v. LaMacchia

    871 F. Supp. 535 (D. Mass. 1994)   Cited 11 times
    In LaMacchia, Judge Stearns dismissed an indictment charging an MIT student who created an electronic bulletin board through which users could share software programs with conspiracy to commit wire fraud.

    The Ninth Circuit nonetheless focused on the fact that Dowling had "concealed his activities from the copyright holders with the intent to deprive them of their royalties." United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir. 1984). "It is settled in this Circuit that a scheme to defraud need not be an active misrepresentation.

  4. Eller v. Equitrust Life Ins. Co.

    778 F.3d 1089 (9th Cir. 2015)   Cited 22 times
    Finding no duty to disclose to purchaser that annuity "may provide lower index credits than might have been available in an alternative product without the bonus feature"

    A non-disclosure, however, can support a fraud charge only “when there exists an independent duty that has been breached by the person so charged.” United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir.1984), rev'd on other grounds, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). “Absent an independent duty, such as a fiduciary duty or an explicit statutory duty, failure to disclose cannot be the basis of a [RICO] fraudulent scheme.”

  5. U.S. v. Woods

    335 F.3d 993 (9th Cir. 2003)   Cited 94 times   1 Legal Analyses
    Holding it was proper for the district court to notice published agency regulations

    However, the district court's instruction and the government's closing argument correctly reflect that a scheme to defraud may be based on a nondisclosure "when there exists an independent duty that has been breached by the person so charged. This independent duty may exist in the form of a fiduciary duty to third parties, or may derive from an independent explicit statutory duty created by legislative enactment." United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir. 1984) (internal citations omitted; emphasis added), rev'd on other grounds, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). The Rule could properly serve as the basis for such a duty. It was adopted pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101- 6108, see 16 C.F.R. § 310.1, wherein Congress directed the FTC to prescribe telemarketing rules and requirements, see 15 U.S.C. § 6102(a).

  6. U.S. v. Coyle

    943 F.2d 424 (4th Cir. 1991)   Cited 20 times
    Affirming the mail and wire fraud convictions of defendant who manufactured and distributed descramblers intended to enable his customers to receive cable programs without paying for them

    He points out that Brewer was under a statutory obligation to disclose the names of her cigarette customers to taxing authorities. Coyle relies on United States v. Dowling, 739 F.2d 1445 (9th Cir. 1984), rev'd on other grounds, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) (reversing convictions based on National Stolen Property Act, 18 U.S.C. § 2314, without reviewing convictions based on Mail Fraud Act). Dowling emphasized the statutory duty of disclosure under the Copyright Act in upholding a mail fraud conviction for manufacturing and distributing bootleg phonograph records. He also cites United States v. Gallant, 570 F. Supp. 303 (S.D.N.Y. 1983), which dismissed a mail fraud prosecution because there was no fiduciary or explicit statutory duty of disclosure.

  7. United States v. Minor

    756 F.2d 731 (9th Cir. 1985)   Cited 13 times

    We rejected this argument on the appeal by Minor's co-defendant, Dowling. United States v. Dowling, 739 F.2d 1445, 1450-51 (9th Cir. 1984), cert. granted, ___ U.S. ___, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985). 2. Value in Excess of $5,000

  8. United States v. Holmes

    Case No. 5:18-cr-00258-EJD (N.D. Cal. Feb. 11, 2020)   Cited 10 times
    Stating that "the Government need not allege in the indictment its case theory or the evidence underlying the charges. The Government must only provide enough facts to apprise a defendant of what defense should be prepared for trial. Hence, the Government need not allege specific misstatements to meet the 'fair notice' requirement."

    A nondisclosure or concealment may serve as a basis for the fraudulent scheme." United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir. 1984), rev'd on other grounds, 473 U.S. 207 (1985). The ability to use an omission to form the basis of a scheme to defraud is narrow.

  9. United States v. Galloway

    Case No. CR 14-607 PJH (N.D. Cal. Aug. 15, 2016)

    A non- disclosure, however, can support a fraud charge only "when there exists an independent duty that has been breached by the person so charged." U.S. v. Dowling, 739 F.2d 1445, 1449 (9th Cir.1984), rev'd on other grounds, 473 U.S. 207 (1985). The government does not dispute that a fraud charge supported by omission or non-disclosure requires a duty to disclose, and conceded at the hearing that its concealment theory is not based on any duty to disclose, including a duty to disclose the Sherman Act violations.

  10. United States v. Lonich

    Case No. 14-cr-00139-SI-1 (N.D. Cal. Jan. 27, 2016)   Cited 4 times
    Holding that if the government wishes to prosecute based on an omissions theory, the indictment must allege that defendant owed a duty to disclose

    A non-disclosure, however, can support a fraud charge only 'when there exists an independent duty that has been breached by the person so charged.'" Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089, 1092 (9th Cir. 2015) (quoting United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir.1984), rev'd on other grounds, 473 U.S. 207 (1985)); see also Dowling, 739 F.2d at 1449 ("a non-disclosure can only serve as the basis for a fraudulent scheme when there exists an independent duty that has been breached by the person so charged."); United States v. Steffen, 687 F.3d 1104, 1116 (8th Cir. 2012) (affirming the dismissal of an indictment alleging bank fraud, mail fraud, and wire fraud where indictment alleged defendant failed to disclose information and duty to disclose arose from contract; "[W]e agree with the district court that in order for a fraudulent disclosure to be actionable fraud (either criminal or civil) the duty to disclose must be independent of any duty imposed by the contract. In the civil context, a fraud claim is permitted only if it arises from acts that are separate and distinct from the contract. If the same rule did not apply in the criminal context, every breach of a bank loan agreement could give rise to criminal fraud prosecution.") (internal citation