United States v. Jones ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30024
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00543-RSM
MATTHEW D. JONES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
December 6, 2006—Seattle, Washington
Filed January 10, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable William W Schwarzer, Senior District Court Judge for
the Northern District of California, sitting by designation.
227
UNITED STATES v. JONES 229
COUNSEL
Sheryl Gordon McCloud, Law Office of Sheryl Gordon
McCloud, Seattle, Washington, for the defendant-appellant.
Katheryn Kim Frierson, Assistant United States Attorney,
Seattle, Washington, for the plaintiff-appellee.
230 UNITED STATES v. JONES
OPINION
B. FLETCHER, Circuit Judge:
I. FACTS
Matthew Jones appeals the denial of his motion to with-
draw his plea. We affirm. On June 16, 2005, Jones pled guilty
to one count of wire fraud, in violation of 18 U.S.C. § 1343.
The plea agreement included a set of stipulated facts upon
which the guilty plea was predicated. In particular, the plea
agreement established that Jones had learned at some point in
2000 of an investment opportunity known as the “Miracle Car
Deal.” Other participants in the Miracle Car Deal informed
Jones that a wealthy car collector had recently died, leaving
a fleet of luxury cars. As part of an attempt to liquidate the
estate, the luxury cars were being sold off at cut rate prices in
order to avoid tax consequences. In reality, neither the cars,
nor the estate, existed.
Before learning of the Miracle Car Deal’s fraudulent
nature, Jones began to solicit other investors. Jones informed
the investors that he would collect their money for safe-
keeping and that none of the funds would be turned over to
the estate until the cars were delivered. Between May 2001
and March 2002, Jones successfully solicited forty-five differ-
ent investors, who entrusted him with approximately $1.3 mil-
lion. Contrary to his representations, Jones spent this money
on himself, not on acquiring Miracle Cars. His expenditures
included the purchase of property in the San Juan Islands and
payments for staff, consultants, and other services related to
his personal business ventures.
In February 2002, Jones first learned that the Miracle Car
Deal perpetrators were under federal investigation, though he
did not disclose this information to his investors.1 Five
1
Jones also continued to solicit new investors for another month after
learning of the investigation.
UNITED STATES v. JONES 231
months later, in July 2002, the original Miracle Car Deal pro-
moters were indicted in federal court. After discovering the
fraud, Jones’s investors called him requesting refunds. Rather
than returning their money, Jones informed them that the gov-
ernment had seized the off-shore account in which he had
been keeping the funds.2
The grand jury returned a Superseding Indictment against
Jones on March 2, 2005, charging him with one count of wire
fraud, in violation of 18 U.S.C. § 1343, and three counts of
money laundering, in violation of 18 U.S.C. § 1957. In
exchange for his guilty plea, the government dropped the
three money laundering counts and agreed to recommend a
sentence that took Jones’s acceptance of responsibility into
consideration. The change of plea hearing was held on June
16, 2005, before a magistrate judge. At the hearing, the court
engaged in a colloquy with Jones to ensure that the plea was
voluntary, knowing, and intelligent, and to determine whether
there was a factual basis for the plea. The U.S. Attorney
informed Jones that the offense of wire fraud required that the
following elements be proven:
First, the Defendant devised a material scheme and
artifice to defraud or to obtain money and property
by means of material false and fraudulent pretenses,
representations and promises, knowing that the pre-
tenses, representations and promises were false.
Second, that the Defendant acted with the intent to
defraud.
And, third, that the Defendant transmitted or caused
to be transmitted by means of wire, radio or televi-
sion communication in interstate or foreign com-
merce any writings, signs, signals, pictures or sounds
2
This is the only misrepresentation Jones admitted in the plea agree-
ment.
232 UNITED STATES v. JONES
for the purpose of executing such a scheme and arti-
fice.
(Tr. of Change of Plea Hr’g, Dec. 8, 2005, at 6-7).
The U.S. Attorney then proceeded to summarize the agreed
statement of facts detailed in the plea agreement. After this
recitation, the magistrate judge asked defendant whether he
agreed with the summary. Defense counsel responded, and the
government agreed, that “when [Jones] first became aware of
and involved in the Miracle Car Deal, he did not know there
was anything fraudulent about it.” Id. at 11. Defense counsel
then added,
It’s our understanding that, and our belief, that in
looking at the statute that his criminal guilt is that
after he had received this very significant amount of
money, that he disposed of it in a way that was
inconsistent with applying it on car purchases and
then he made false representations to those people
that had given him the money as to what had hap-
pened. He told them that the government had seized
it. That was clearly a misrepresentation. So stated
simply, we believe he acquired the money in good
faith, but he disposed of it unlawfully and used the
wires to misrepresent to the owners of the funds
what had happened to the money.
Id. at 11-12. The district court then noted that counsel’s state-
ments were “completely consistent with the facts as set forth.”
Id. at 12. Jones also agreed with his attorney’s assertions.
At the end of the colloquy, Jones formally entered a plea
of guilty to one count of wire fraud in violation of 18 U.S.C.
§ 1343. The magistrate judge found that the plea was know-
ing, intelligent, and voluntary, and that the agreed-upon facts
provided an independent basis for the plea. The magistrate
judge then recommended that the district court accept the
UNITED STATES v. JONES 233
plea, and on July 5, 2005, the district court adopted the magis-
trate judge’s recommendation.
On December 1, 2005, Jones requested a third continuance
of his sentencing date, then set for December 9, expressing a
desire to consult with his fourth successive new counsel about
a possible withdrawal of his plea. The district court denied the
request for a continuance. In response, Jones asked to with-
draw his guilty plea, claiming that he discovered only after
the plea was entered that his admitted conduct did not meet
the elements of wire fraud. Because he denied making any
false representation prior to receiving the victims’ money,
Jones argued that he had not obtained any money or property
by means of material false and fraudulent pretenses, represen-
tations and promises.
A hearing on the motion to withdraw was scheduled for
January 6, 2006. Jones filed a supplemental memorandum one
week before the hearing, noting that he “ha[d] not asked this
Court to strike his plea of guilty, but only to grant him leave
to withdraw his plea . . . . He has . . . not made a firm decision
to withdraw his plea.” (Def. Reply to Gov’t Supp. Resp. to
Def. Motion to Withdraw Plea, Dec. 29, 2005, at 6 n.4). Jones
also repeated his request for a continuance.
At the hearing, the district court denied Jones’s request for
a continuance, noting that the court would not countenance
further delay. The district court also denied Jones’s motion to
withdraw his plea, concluding that “the facts as admitted in
the plea colloquy do support a finding of guilt,” and that
defendant’s motion “appears to be simply a change of heart
and does not constitute a fair and just reason to grant a with-
drawal.” (Tr. of Sentencing Hr’g, Feb. 14, 2006, at 16.). The
court added that it thought the motion was “part of a well
established pattern and behavior designed to simply continue
or delay resolution of this case.” Id. at 16-17.
234 UNITED STATES v. JONES
II. DISCUSSION
Jones argues that his acts do not fall within the ambit of
§ 1343 and that the district court abused its discretion in deny-
ing his motion to withdraw. We reject both contentions and
affirm.
A. The Scope of 18 U.S.C. § 1343
[1] 18 U.S.C. § 1343 criminalizes the act of wire fraud. The
statute provides, in relevant part,
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pre-
tenses, representations, or promises, transmits or
causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign
commerce, any writings, signs, signals, pictures, or
sounds for the purpose of executing such scheme or
artifice, shall be fined under this title or imprisoned
not more than 20 years, or both.
18 U.S.C. § 1343 (2002). The Supreme Court has interpreted
§ 1343 broadly and twice held that individuals who retain or
misappropriate the money or property of others, regardless of
how they acquired it, fall within the purview of mail or wire
fraud.
In Carpenter v. United States, David Carpenter was
accused of aiding and abetting K. Foster Winans in commit-
ting wire fraud. 484 U.S. 19 (1987). Winans was employed as
a reporter for the Wall Street Journal. He wrote a daily col-
umn, “Heard on the Street,” that provided positive or negative
information on various stocks. Although Winans was not
privy to confidential information, his column was well-
respected and the district court found that it affected the prices
of stocks it discussed. Id. at 22-23. Official policy at the Jour-
UNITED STATES v. JONES 235
nal was that prior to publication, an article’s content was con-
fidential information owned by the newspaper. In spite of this
rule, Winans began to leak information from his article, prior
to publication, to friends who would buy or sell stocks based
on the likely impact of the article on stock prices. Eventually,
Winans was convicted of mail and wire fraud, among other
things, and Carpenter was convicted of aiding and abetting in
the commission of securities fraud, and mail and wire fraud.
United States v. Carpenter, 791 F.2d 1024, 1025 (2d Cir.
1986). Carpenter appealed his conviction, arguing, in part,
that Winans’s behavior did not amount to fraud, as proscribed
by the mail fraud statute.
[2] The Court rejected his argument, stating that “[s]ections
1341 and 1343 reach any scheme to deprive another of money
or property by means of false or fraudulent pretenses, repre-
sentations, or promises.”3 Carpenter, 484 U.S. at 27 (empha-
sis added). Winans’s scheme, in which he wrongfully retained
and disseminated information owned by the Journal, fell
within this broad definition. Even more harmful to Jones’s
case, the Court added that “[t]he concept of ‘fraud’ includes
the act of embezzlement, which is the fraudulent appropria-
tion to one’s own use of the money or goods entrusted to
one’s care by another.” Id. (citing Grin v. Shine, 187 U.S.
181, 189 (1902)) (quotations omitted).
The Court upheld the wire fraud conviction of another
defendant accused of wrongfully retaining money or property
in Pasquantino v. United States, 544 U.S. 349 (2005). In
Pasquantino, petitioners were involved in a scheme to smug-
gle large quantities of liquor into Canada, thereby avoiding
the hefty excise taxes imposed on imports. As with Jones’s
3
We also have construed fraud broadly in the context of the mail fraud
statute. For instance, in United States v. Bohonus, the court explicitly
referred to the “broad interpretation of ‘fraud’ ” and noted, “[t]he fraudu-
lent nature of the ‘scheme or artifice to defraud’ is measured by a non-
technical standard.” 628 F.2d 1167, 1171 (9th Cir. 1980).
236 UNITED STATES v. JONES
scheme, petitioners did not fraudulently take money from the
Canadian government; they fraudulently deprived the Cana-
dian government of money to which it was entitled. Id. at 356.
In deciding that this activity was, in fact, wire fraud, the Court
noted that “fraud at common law included a scheme to
deprive a victim of his entitlement to money. For instance, a
debtor who concealed his assets when settling debts with his
creditors thereby committed common-law fraud.” Id.
[3] Given this broad understanding of “fraud,” Jones’s
argument that he did not fraudulently obtain money within the
meaning of § 1343 lacks merit. Jones received $1.3 million
from investors, money that he was supposed to keep safe and
use only for the purchase of automobiles. Instead, he fraudu-
lently appropriated the money, lying to investors about its dis-
position in order to avoid returning it to its rightful owners.
Although, per the plea agreement, Jones did not possess a
fraudulent intent when he received the money, his fraudulent
appropriation of the funds still satisfies the elements of
§ 1343.
B. The Validity of Appellant’s Plea
[4] A plea agreement must be knowing and voluntary,
which requires that “the defendant possess[ ] an understand-
ing of the law in relation to the facts.” McCarthy v. United
States, 394 U.S. 459, 466 (1969). In addition, Federal Rule of
Criminal Procedure 11 requires judges to determine that a
plea has a factual basis. Fed. R. Crim. P. 11. To satisfy this
requirement, “[t]he judge must determine ‘that the conduct
which the defendant admits constitutes the offense charged in
the indictment or information or an offense included therein
to which the defendant has pleaded guilty.’ ” McCarthy, 394
U.S. at 467 (citation omitted). Here, Jones argues that his plea
is invalid because he did not understand that the facts to
which he stipulated in his plea agreement failed to qualify as
wire fraud. Because Jones’s argument is based entirely on the
same misapprehension of the law discussed above, the argu-
ment lacks merit.
UNITED STATES v. JONES 237
C. Waiver of Plea
We review the district court’s denial of Jones’s motion to
withdraw his plea for abuse of discretion. United States v.
Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). A court
abuses its discretion when it rests its decision on an inaccurate
view of the law. United States v. Garcia, 401 F.3d 1008, 1011
(9th Cir. 2005).
[5] This court has made clear that “[a] defendant may with-
draw a guilty plea after a district court accepts the plea but
before sentencing if ‘the defendant can show a fair and just
reason for requesting the withdrawal.’ ” United States v.
Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting
Fed. R. Crim. P. 11(d)(2)(B)). The burden of demonstrating
such a fair and just reason rests with defendant; however, the
standard is applied liberally. See, e.g., United States v. Davis,
428 F.3d 802, 805 (9th Cir. 2005); Garcia, 401 F.3d at 1011;
Ortega-Ascanio, 376 F.3d at 883. “Fair and just reasons for
withdrawal include inadequate Rule 11 plea colloquies, newly
discovered evidence, intervening circumstances, or any other
reason for withdrawing the plea that did not exist when the
defendant entered his plea.” Ortega-Ascanio, 376 F.3d at 883.
[6] The sole reason Jones offered for withdrawal was that
the magistrate judge failed to ensure that his plea included the
necessary factual basis, thereby rendering the Rule 11 plea
colloquy inadequate. As discussed above, this argument lacks
merit. Although the standard for allowing withdrawal of a
plea is applied liberally, Jones is still required to show some
“fair and just” reason for withdrawing his plea. Here, he
offered nothing more than his own inaccurate interpretation of
the law. Without more, we cannot say that the district court
abused its discretion in denying his motion to withdraw his
plea.
AFFIRMED.