As to the convictions, the main issue was the Ninth Circuit's interpretation of the wife/mail fraud statutes: "Defendant’s beef is . . . with our circuit’s longstanding construction of the mail and wire fraud statutes. Defendant argues that our 'interpretations' of those statutes are not interpretations at all, but instead amount to judicially created crimes in violation of separation-of-powers principles."
The Court continued: "Under our longstanding precedent, 'anyone who knowingly and intentionally participates in the execution of [a] fraudulent scheme comes within the prohibition of the mail and wire fraud statutes regardless of whether the defendant devised the scheme.' But, as Defendant correctly points out, the mail and wire fraud statutes, by their terms, punish only those who 'devise[] or intend[] to devise any scheme or artifice to defraud'; the word 'participate' does not appear in the statutes. According to Defendant, by reading the mail and wire fraud statutes to prohibit 'participation in' schemes to defraud, we have essentially created new crimes, thus violating separation-of-powers principles."
To me, this is a very clever and compelling argument. Not so much for the Court. It held there was no separation of powers problem because, in determining that the mail and wire fraud statutes criminalize “participating in” schemes to defraud, it was engaged in proper judicial interpretation (not law making).
Of note, the Court says, "we do not usurp the role of Congress simply by construing a criminal statute broadly." But this seems to conflict with the principle that criminal statutes must be construed narrowly.
Moving on, the Court vacated the sentence because the record did not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c). On this issue, there is lots of helpful language about what a defendant must have done to qualify as an organizer.
A person who is not criminally responsible for the commission of the offense . . . is not a participant.” In order to impose the enhancement, there must be a “showing that the defendant had control over other[]” participants or “organiz[ed] other[] [participants] for the purpose of carrying out” the charged crimes. A defendant “organizes” other participants if he has “the necessary influence and ability to coordinate the[ir] behavior . . . so as to achieve the desired criminal result[s].” Mere facilitation of criminal activity is not sufficient to support the enhancement. Nor is it sufficient for a defendant to have organized property or activities—the defendant must have organized participants.As to restitution, the Court explained a restitution order cannot both require immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration.
