United States v. Roger Andrews , 2015 FED App. 0248P ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0248p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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│ No. 14-2045
v. │
>
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ROGER LEE ANDREWS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:13-cr-00178—Robert J. Jonker, District Judge.
Decided and Filed: October 16, 2015
Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Gregory C. Sassé, Cleveland, Ohio, for Appellant. Christopher M. O’Connor,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
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OPINION
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SUTTON, Circuit Judge. Roger Lee Andrews borrowed a lot of money from several
people, claiming the money would go to improve several properties and that he would pay it
back quickly with substantial interest. Neither happened. He never returned the money or for
that matter paid any interest. And the properties were a mirage. The money instead went into a
personal day-trading account—and never reappeared. A jury convicted him of one count of wire
fraud. We affirm.
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From 2006 to 2008, Andrews asked various friends and colleagues to loan him money—
roughly two million dollars in total. When he asked for a loan, Andrews usually gave a reason.
He said he needed money to purchase property in Indianapolis or to improve property that he
owned in the area. On occasion Andrews used other pretenses. All told, as Andrews admits,
there were seventeen instances in which he borrowed money on such grounds. For the most part,
as one lender put it, “[i]t was always about” property in “Indianapolis.” R. 82 at 65.
Except it was not. Unbeknownst to the lenders, Andrews never owned, bought, or
improved property in Indianapolis. Andrews instead mostly used the money to fund a day-
trading account with TD Ameritrade. Any skill Andrews had in convincing others to loan him
money did not translate into skill as an investor. Andrews was invariably buying when he should
have been selling and selling when he should have been buying. Most of the money vanished.
Sometimes Andrews paid the loans back, especially early in the scheme. But most of the
time he did not, especially as time went on. When Andrews borrowed money that he could not
repay on time, he continued to tell tales about the Indianapolis property to assure his victims that
their loans would eventually be returned, though “it was going to take a little bit of time.” R. 82
at 51–55. Andrews’s assurances that the Indianapolis property existed and that the money was
being used for purposes related to it continued well after the last loan occurred—at least into
2010. All in all, Andrews’s victims lost over 1.4 million dollars.
A grand jury indicted Andrews on one count of wire fraud, see 18 U.S.C. § 1343, and a
jury convicted him. The court sentenced him to 87 months in prison and ordered him to repay
the full amount his victims had lost. On appeal, Andrews presses two related issues: Were all of
these incidents part of a single “scheme to defraud” under § 1343? And was the indictment time
barred?
Scheme to defraud? All of the loans that Andrews obtained to fund his day-trading
account were part of a single “scheme . . . to defraud.” 18 U.S.C. § 1343. “A scheme to
defraud,” we have explained, “includes any plan or course of action by which someone intends
to deprive another . . . by deception of money or property by means of false or fraudulent
pretenses, representations, or promises.” United States v. Daniel, 329 F.3d 480, 485 (6th Cir.
2003). The existence of a scheme to defraud and its duration are fact questions for the jury.
No. 14-2045 United States v. Andrews Page 3
United States v. Cunningham, 679 F.3d 355, 374 (6th Cir. 2012). Consistent with the text of the
statute and our caselaw, the district court instructed the jury that “[a] ‘scheme to defraud’
includes any plan or course of action by which someone intends to deprive another of money or
property by means of false or fraudulent pretenses, representations, or promises.” R. 84 at 206.
Ample evidence supported the resulting conviction—and most pertinently the necessary
finding that the scheme included all of the fraudulently obtained loans, including those that
occurred as early as 2006. Several pieces of evidence united the loans into one scheme to
defraud: (1) a common false statement of a need for funds, usually related to nonexistent
Indianapolis property; (2) a common group of victims, usually friends or colleagues, who loaned
money to Andrews repeatedly; and (3) a common purpose for the funds, usually the need to fund
Andrews’s day-trading account. Five witnesses confirmed the common false statement of need
for the funds—that Andrews claimed he needed money in connection with property in Indiana.
The four victims had similar relationships with Andrews: Two were friends and business
associates; one considered Andrews his “[b]est friend[],” R. 84 at 7; and one had a business
relationship with Andrews. And Andrews used most of the money in the same way—to fund his
day trading. Altogether, this evidence readily fits within our understanding of a “scheme to
defraud.” See United States v. Kennedy, 714 F.3d 951, 957–59 (6th Cir. 2013); Cunningham,
679 F.3d at 370–71.
No doubt in some cases each individual fraudulent act (here each individual loan) is
treated as a single “scheme to defraud,” and each act is charged as a stand-alone violation of
§ 1343. See, e.g., United States v. Nixon, 694 F.3d 623, 627 (6th Cir. 2012) (upholding
conviction of eleven counts of wire fraud, all stemming from the defendant’s misuse and theft of
her employer’s resources); United States v. Stafford, 639 F.3d 270, 273 (6th Cir. 2011)
(upholding conviction of fifty-one counts of fraud, money laundering, and conspiracy to commit
fraud, all stemming from a fraudulent home-buying scheme). But that reality does not prevent
the government from charging, and from proving, that a series of fraudulent acts constitutes a
single “scheme to defraud.” United States v. Fishman, 645 F.3d 1175 (10th Cir. 2011),
illustrates the point. Fishman and his co-conspirators concocted a complex scheme involving the
sale of fraudulent bonds. Id. at 1180–82. The scheme lasted over 5 years, impacted 250 victims,
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and resulted in a loss of over 4 million dollars. Id. at 1182. Fishman and his co-conspirators
engaged in individual sales with each investor and employed different “stalling tactics” when
investors became concerned about what happened to their investments. Id. at 1181. The Tenth
Circuit had no trouble upholding Fishman’s conviction for conspiracy to commit wire fraud and
treating the multiple sales over five years as one “scheme to defraud” under § 1343. Id. at 1186–
87. We have no trouble taking a similar path here.
Time bar? Andrews also was indicted within the five-year statute of limitations. See
18 U.S.C. § 3282(a). As the record confirms and as Andrews concedes, the final loan occurred
on September 25, 2008. That is fewer than five years before the government indicted
Andrews—on September 18, 2013. As noted, “the duration of the scheme to defraud” is a fact
question, Cunningham, 679 F.3d at 374, and the court properly instructed the jury to determine
whether “at least one wire communication was used on or after September 18, 2008,” R. 84 at
207. As the above evidence shows, the jury permissibly found each element. Indeed, even if the
jury had decided that the scheme ended when Andrews received the last loan, the entire scheme
faces no statute-of-limitations problem because the last loan occurred within five years of the
indictment. See Daniel, 329 F.3d at 489. In the final analysis, considerable evidence supports
the government’s theory that Andrews’s series of false statements and illegally obtained loans
constituted a single “scheme to defraud,” see R. 84 at 206, one that ended fewer than five years
before his indictment.
Andrews’s contrary arguments do not do the trick. He claims that “[e]ach fraudulently
induced loan was its own scheme” that ended when he received the loan, Appellant’s Br. 32, and
that his prosecution for any loans received prior to September 2008 thus should be time barred.
But the jury concluded otherwise, and sufficient evidence supports its finding, as we have
explained. Andrews’s understanding of “scheme to defraud,” moreover, is not ours—and more
particularly it is not the one reflected in our caselaw. Several common acts in support of a
common fraudulent design may create a scheme to defraud, as opposed to isolated acts of fraud.
See Kennedy, 714 F.3d at 957–59; Cunningham, 679 F.3d at 370–71.
At various points in his initial brief, Andrews seems to challenge his indictment as
duplicitous. But as Andrews later acknowledges, he made no such challenge below and does not
No. 14-2045 United States v. Andrews Page 5
mean to raise such a challenge now. His argument instead turns on the statute of limitations, a
contention we have already considered and rejected.
United States v. Anderson, 188 F.3d 886 (7th Cir. 1999), does him no good. In that case,
the Seventh Circuit held that the scheme “was completed upon receipt of the funds” and that
“[t]he mere act of transferring money from one bank account to another was not part of the
original scheme to defraud, nor did it create a new financial risk.” Id. at 891. That setting is not
this one. Having received money on false pretenses, Andrews did not place it in a bank account
and leave it there. He put it in a trading account, continuing to invest it and continuing to expose
it to new financial risks, as each victim can attest. The fraud did not end when he obtained the
loans from his victims. What is more, Andrews continued to assure his victims that the money
he had taken from them was still being used to buy or improve the Indianapolis property long
after he had obtained the money. Such actions have a “lulling effect” on the victims, making the
actions part of the ongoing fraud. United States v. Faulkenberry, 614 F.3d 573, 582–83 (6th Cir.
2010); see United States v. Lane, 474 U.S. 438, 451–52 (1986). All of these actions came within
the “scheme to defraud” and indeed were part and parcel of it. The statute of limitations did not
bar the government’s prosecution of the whole scheme.
For these reasons, we affirm.