United States v. Ethan Jinian

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10593 Plaintiff-Appellee, D.C. No. v. 3:09-cr-01103-

JSW-

ETHAN FARID JINIAN , AKA Farid Khoujinian, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted October 18, 2012—San Francisco, California

Filed March 26, 2013

Before: Dorothy W. Nelson, Mary H. Murguia, and Morgan Christen, Circuit Judges.

Opinion by Judge Murguia; Concurrence by Judge Christen

1 This case was submitted to a panel that included Judge Betty B. Fletcher, who recently passed away. Following Judge Fletcher’s death, Judge Christen was drawn by lot to replace Judge Fletcher. Judge Christen has read the briefs, reviewed the record, and listened to the oral argument. UNITED STATES V . JINIAN

SUMMARY*

Criminal Law

The panel affirmed a defendant’s conviction and sentence on thirteen counts of wire fraud in violation of 18 U.S.C. § 1343 stemming from a scheme to defraud his employer,…

Opinion by Judge MURGUIA; Concurrence by Judge CHRISTEN.

OPINION

Ethan Farid Jinian was charged with fourteen counts of wire fraud in violation of 18 U.S.C. § 1343 stemming from his scheme to defraud his employer. Jinian contends that the district court erred in denying his motions for judgment of acquittal, a new trial, and for an arrest of judgment. Specifically, he argues that (1) routine transmissions occurring during the interbank collection process are not made for the purpose of executing a scheme to defraud or in furtherance thereof, (2) the jury should have been instructed that it was necessary to find that the interstate nature of the wire communications was reasonably likely or foreseeable, (3) there was insufficient evidence to establish that an interstate wire communication was reasonably foreseeable between two California banks, and (4) the wire fraud statute is unconstitutional as applied to him. We reject these arguments and affirm Jinian’s conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

From 2004 until 2008, Jinian served as the chief executive officer (“CEO”) of Bric-snet FM America, Inc. (“Bricsnet”), a company that developed and sold software.…

concurring:

I concur with the majority opinion. I write separately to emphasize the attribute of Jinian’s fraudulent scheme that'is fatal to his argument that his crime was complete upon the deposit of each check into his account at Mechanics Bank.

When a perpetrator — like Jinian — conceives of an ongoing scheme to defraud, he is necessarily concerned with which party ultimately bears the loss; indeed, his ability to continue the scheme depends upon it. See Schmuck v. United States, 489 U.S. 705, 714 , 109 S.Ct. 1443 , 103 L.Ed.2d 734 (1989). In contrast, one-time fraudsters are indifferent to who pays for their crimes, because they do not need to leave one party whole in order to avoid detection and swindle again. See Kann v. United States, 323 U.S. 88, 93-94 , 65 S.Ct. 148 , 89 L.Ed. 88 (1944). The Schmuck and Kann cases illustrate that when a perpetrator is indifferent to the ability to repeat the fraudulent scheme, the use of mail or wires after money or services are obtained cannot be “for the purpose of executing [that] scheme.” See 18 U.S.C. § 1343 . For federal wire fraud, the point at which this type of transaction is deemed “completed” is illustrated by comparing the…