United States v. McDowell & Co.

MEMORANDUM **

Rusty McDowell and McDowell & Company, Inc., appeal their jury convictions and sentences for conspiracy in violation of 18 U.S.C. § 371 , wire fraud in violation of 18 U.S.C. § 1343 , and mail fraud in violation of 18 U.S.C. § 1341 . The convictions arose out of a scheme in which McDowell & Co. obtained drawings from a company called Applied Materials under false pretenses, and used those drawings to have Applied machine parts made and sold to Applied’s customers without permission, and without Applied getting any proceeds from the sales.

The defendants raise several arguments related to the indictment. They first contend that the indictment was fatally flawed because it failed to allege a specific material misstatement, which they claim is an essential element of the offense pursuant to See Neder v. United States, 527 U.S. 1, 25 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). This argument is foreclosed by United States v. Woods, 335 F.3d 993 (9th Cir.2003), which reiterated our long-standing caselaw that a defendant’s actions can constitute a scheme to defraud even if there are no specific false statements involved, as long as the scheme taken as a whole was misleading…