In U.S. v. Ward, No. 05-11622 (May 16, 2007), the Court affirmed the convictions and sentence of a defendant convicted of mail and wire fraud, in charges arising out of his involvement in a Ponzi scheme.
The jury acquitted Ward of the conspiracy count, but convicted him on substantive mail fraud counts. Ward argued that, in view the conspiracy acquittal, and of the fact that he did not "personally commit" each element of wire and mail fraud, the evidence on these counts was insufficient. The Court rejected this argument as contrary to law: "a defendant may be convicted of mail fraud without personally committing each and every element of mail fraud, so long as the defendant knowingly and willfully joined the criminal scheme, and a co-schemer used the mails for the purpose of executing the scheme." Here, the government presented "more than enough evidence" to establish Ward’s knowing participation in the fraud scheme.
The Court also rejected the argument that the trial court constructively amended the indictment by instructing the jury that it could convict Ward on the mail and wire fraud even if it could not reach a verdict on conspiracy. Ward pointed out that each of the substantive counts charged that unlawful acts were undertaken for the purpose of executing the conspiracy. The Court pointed out that these counts also alleged that the acts were undertaken for the purpose of obtaining money by false pretenses. Further, conspiracy and substantive fraud are separate offenses. The "surplusage" of the indictment could be deleted without causing legal error. The deletion of the conspiracy language did not alter the mens rea for the offense, and did not broaden the bases for conviction.
