Powers

MEMORANDUM

George Powers appeals his conviction, sentence and order of restitution following a guilty verdict on charges of wire fraud in violation of 18 U.S.C. § 1343 . Supreme Health Care Services, Inc. appeals its conviction and the district court’s order of restitution. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 ; this court has jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1219 . We affirm in part, reverse in part and remand for resentencing.

The facts are well known to the parties and will be repeated here only as is necessary to explain our decision. At oral argument, the Panel directed the Government to identify those excerpts of the record which it believed tied the trial evidence to the specific counts contained in the indictment. Later, we ordered the parties to submit supplemental briefs addressed to the issue of whether the wire fraud convictions can be upheld if the government presented insufficient evidence that the individual uses of the wires named in the indictment were themselves fraudulent, even if there was evidence to prove that the defendants’ overall use of the wires to effectuate the scheme was fraudulent. Having…