United States v. Yasuhiro Kato

Kato appeals his convictions for conspiracy against the United States, 18 U.S.C. § 371 (1982), mail fraud, 18 U.S.C. § 1341 (1982), and false statement, 18 U.S.C. § 1001 (1982 & Supp. IV 1986). Kato contends that his conviction for mail fraud, based on allegations that he defrauded the Federal Aviation Administration into issu *268 ing pilot licenses to those unqualified to receive them, is invalid under McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987), because the pilot licenses are not property. He also contends that his conspiracy conviction must be reversed because it might have been based on the insufficient ground of an agreement to commit mail fraud by defrauding the FAA into issuing pilot licenses. Finally, Kato contends that his false statement conviction was based on an instruction improper under Pinkerton v. United States, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946), and must be reversed. We reverse the mail fraud conviction, affirm the conspiracy and false statement convictions, and remand for resentencing.

FACTS

In January 1987, Kato, Charles Rogers, and Coral Hansen were indicted for conspiring to defraud the United States and…

concurring and dissenting:

I concur in the opinion of the court as to the conspiracy and false statement counts, and I dissent as to the mail fraud counts.

A narrow, even technical, issue is presented by this appeal, but when a technicality is used to defeat justice it seems appropriate for a court to construe the law technically to achieve justice.

The question is whether the paper of which Kato defrauded the government constitutes property. I see no reason why it does not. If the paper belonged to a private person, it would indisputably be property. Why should the government be less protected from fraud than a private individual?

The case of a private individual is clear if one thinks of a hypothetical in which A by trick takes from B the deed to Blackacre. Anciently, the law did not recognize the paper deed as protected property. Modemly, “all jurisdictions” recognize that written instruments, such as deeds, can be stolen. LaFave & Scott Criminal Law § 8.4.

It is equally well-established law that blank bonds are securities for the purposes of 18 U.S.C. § 2314 forbidding the transport in interstate commerce of stolen securities. U.S. v. Taylor, 802 F.2d 1108, 1115 (9th…

878 F.2d 267 UNITED STATES of America, Plaintiff-Appellee, v. Yasuhiro KATO, Defendant-Appellant. No. 88-1160. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 10, 1989. Decided June 20, 1989. Brook Hart, Hart & Wolff, Honolulu, Hawaii, for defendant-appellant. Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before NORRIS, NOONAN and LEAVY, Circuit Judges. LEAVY, Circuit Judge: 1 Kato appeals his convictions for conspiracy against the United States, 18 U.S.C. Sec. 371 (1982), mail fraud, 18 U.S.C. Sec. 1341 (1982), and false statement, 18 U.S.C. Sec. 1001 (1982 & Supp. IV 1986). Kato contends that his conviction for mail fraud, based on allegations that he defrauded the Federal Aviation Administration into issuing pilot licenses to those unqualified to receive them, is invalid under McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987), because the pilot licenses are not property. He also contends that his conspiracy conviction must be reversed because it might have been based on the insufficient ground of an agreement to…