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United States v. McGowan, No. 08-1384

A jury convicted Brian D. McGowan of eighteen counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of investment advisor fraud, in violation of 15 U.S.C. §§ 80b-6(2) and 80b-17. He was sentenced to a term of sixty-six months’ imprisonment and was ordered to pay restitution in the amount of $182,470.12.

On appeal, he disputes the district court’s decision to allow the main witness against him to testify by videotaped deposition. He also challenges the charges against him on statute-of-limitations grounds. We affirm.

McGowan argues that the district court erred when it denied his motion to dismiss the indictment under 18 U.S.C. § 3282. McGowan contends that the indictment was returned more than five years after the completion of the crime, exceeding the five-year limitations period.

We review de novo the district court’s denial of a motion to dismiss based on statute-of-limitations grounds, deferring to the district court’s factual determinations. United States v. Useni, 516 F.3d 634, 655 (7th Cir. 2008).

The government filed the indictment on April 3, 2003, charging McGowan with eighteen counts of wire fraud and one count of investment advisor fraud. The indictment alleged that McGowan’s scheme to defraud LaMie ran from approximately September 1997 through July 1998. In furtherance of that scheme, the indictment alleged that McGowan made eighteen telephone calls between April 13, 1998 and June 29, 1998 to LaMie, all within five years of the filing of the indictment.

Those eighteen calls serve as the basis for the eighteen counts of wire fraud. McGowan argues that the indictment came too late because LaMie contacted the FBI in March 1998, after she had invested her money with him. All of the phone calls took place after the government knew about the fraud and after McGowan had obtained LaMie’s money. McGowan maintains that the calls could not have been made in furtherance of a scheme about which the authorities were already aware. According to McGowan, because LaMie was already suspicious and had already contacted law enforcement, nothing he said in those calls could have lulled LaMie into a false sense of security regarding her investments, and thus could not have furthered a scheme to defraud LaMie.

In order to prove its wire fraud case against McGowan, the government was obliged to prove McGowan’s participation in a scheme to defraud, his intent to defraud, and his use of the wires in furtherance of the fraudulent scheme. United States v. Roberts, 534 F.3d 560, 569 (7th Cir. 2008), cert. denied, 129 S.Ct. 1028 (2009). Wire communications that lull a victim into a false sense of security after the victim’s money had already been obtained, or that assist the defendant in avoiding detection may be sufficient to further a scheme. United States v. O’Connor, 874 F.2d 483, 486-87 (7th Cir. 1989).

Both the Supreme Court and this circuit have recognized “that calls made after the time that goods have been fraudulently obtained can nevertheless further the fraudulent scheme by making detection or apprehension less likely.” O’Connor, 874 F.2d at 486 (citing United States v. Lane, 474 U.S. 438, 451-52 (1986); United States v. Sampson, 371 U.S. 75, 81 (1962); United States v. Eckhardt, 843 F.2d 989, 994 (7th Cir. 1988)). The Supreme Court has also rejected the contention that a mailing that actually contributes to uncovering the fraudulent scheme cannot supply the mailing element of the mail fraud offense. Schmuck v. United States, 489 U.S. 705, 715 (1989).

Nor does it matter whether the scheme succeeds. Tadros, 310 F.3d at 1006. Rather, the relevant question is whether the wire communication “is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the [wire communication] later, through hindsight, may prove to have been counter-productive and return to haunt the perpetrator of the fraud.” Schmuck, 489 U.S. at 715.

Under those standards, the eighteen calls, which were designed by McGowan to lull LaMie into a false sense of security, were sufficient to meet the element of furthering the scheme. The lulling was part of McGowan’s investment advisor fraud, and so the eighteen calls bring that count well within the period of limitations. Because those calls all came within five years of the filing of the indictment, the court was correct to reject McGowan’s motion to dismiss on statute of limitation grounds.