In the comments, there are calls for the follow up to what I called the most boring post ever. Here is one of the comments:
How about something less prurient and more generally worth noting: the 11th Circuit in an en banc opinion overruled its prior decision in United States v. Brown, 79 F.3d 1550 (11th Cir. 1996), finding that the district court did not err in using the pattern jury instruction for mail fraud, that is, not limiting the mail fraud statute to schemes that would deceive only prudent persons. No matter what your particular persuasion -- prosecutor, defense lawyer, judge, or even criminal -- this is an important decision in white-collar cases. http://www.ca11.uscourts.gov/opinions/ops/200513809op2.pdf
Well, there you have it.
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Boring my ass. One must not overlook the dubitante comment by Judge Birch. Not bad for a small town Georgia boy who didn't attend H.
ReplyDeleteWhat is really interesting and sad about that opinion is that if it involved a civil plaintiff suing a major insurance company, the same court would not have allowed it because of the integration clause in the contract and other language re reliance. Forget if it was a class action, that would never have been allowed. Yet now, people can be deprived of liberty for based upon the entire schemes amount and sentenced on that figure. At least be consistent.
ReplyDeleteAs Svete's counsel on appeal, I have to agree with your commenters, and not with you, David. The issue in this case is very interesting. Hopefully the Supremes will find it so next year, and will vindicate the original intent of the 1872 Congress which enacted the mail fraud law. The way to rewrite criminal statutes is by legislative action, not by imposing the policy preferences of contemporary jurists.
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