                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-4681
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   DAVID MOLESKI,
                                              Appellant
                                   _______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (Crim. Action No. 3-12-cr-00811-001)
                      District Judge: Honorable Freda L. Wolfson
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 19, 2016

      Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                                 (Filed: January 20, 2016)
                                     _______________

                                       OPINION
                                    _______________

JORDAN, Circuit Judge.

       David Moleski appeals twelve of the nineteen counts of his conviction following a

jury trial in the United States District Court for the District of New Jersey. The

       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
prosecution was the result of a fraud scheme that targeted the United States Department

of the Treasury (“Treasury”), the Internal Revenue Service (“IRS”), the Treasury

Inspector General for Tax Administration (“TIGTA”), the State of New Jersey, private

creditors, and a credit agency. We will affirm.

I.     Background1

       From February 2008 to June 2009, Moleski mailed a number of fake financial

instruments and letters to the Treasury, the IRS, the TIGTA, and private parties, in an

attempt to discharge tax and consumer debts. First, in early 2008, he sent the Treasury

two bogus documents titled “Private Offset Discharging and Indemnity Bond” and

“Bonded Registered Bill of Exchange in Accord with HJR-192,” by which he purported

to open accounts for his personal use. (J.A. at 791, 796.) Over the next year, he sent

through the mail additional fake financial instruments styled as “secured promissory

notes” to the Treasury, the TIGTA, and several private banks, attempting to draw upon

the nonexistent Treasury accounts to satisfy his obligations. Those mailings were

lengthy, complex, and rife with arcane legal language. Moleski also sent letters to a

credit reporting agency, claiming that the instruments he sent to the Treasury and his

creditors had eliminated his debts. Based on the foregoing, on January 31, 2013, a




       1
       Moleski only appeals his mail fraud convictions for Counts One through Twelve,
so we will review only the facts relating to those counts.

                                             2
nineteen-count superseding indictment charged Moleski with, inter alia,2 twelve counts

of mail fraud in violation of 18 U.S.C. §§ 1341 and 2.

        At trial, the government’s evidence included the fraudulent documents, as well as

several witnesses’ testimony about the documents. The government’s financial

instruments expert, William Kerr, testified that, even though Moleski “ha[d] no authority

to obligate the Treasury to open an account for him,” (J.A. at 263), the instruments he

mailed contained “criteria of ... legitimate financial instrument[s],” (J.A. at 262), and

were of “high quality” (J.A. at 267.) He further testified that he “spent some hours going

over them because they g[a]ve the appearance of being genuine documents ... .” (J.A. at

356.)

        The government also presented witnesses to testify about how the recipients of

Moleski’s mailings would process them. Juliette Anne Anderson, a former quality and

compliance manager for Advanta Bank, agreed that, when mailings such as Moleski’s

arrived at the bank, an employee would “try to determine whether [they] had any value.”

(J.A. at 228.) Similarly, Shauna Henline of the IRS Frivolous Return Program testified

that it was her office’s procedure to review each document received to make sure it was

“truly frivolous” because even documents with “frivolous rhetoric” sometimes

“contained a legitimate request.” (J.A. at 549-50.)


        2
         The indictment also charged Moleski with two additional counts of mail fraud,
one count of wire fraud (in violation of 18 U.S.C. §§ 1343 and 2), one count of “corruptly
endeavoring to impair and impede the due administration of the Internal Revenue Code”
(in violation of 26 U.S.C. § 7212(a)), and three counts of filing “false, fictitious, and
fraudulent claims” with the IRS (in violation of 18 U.S.C. §§ 287 and 2). As already
noted, supra note 1, Moleski does not appeal his conviction on those charges.
                                              3
       After the parties rested, the Court properly instructed the jury that, in order to

convict Moleski of mail fraud, the jury had to find that the government had proven

beyond a reasonable doubt that he “knowingly devised a scheme to defraud or to obtain

money or property by materially false or fraudulent pretenses, representations or

promises; ... that [he] acted with the intent to defraud; and ... that in advancing,

furthering, or carrying out the scheme, [he] used the mails or caused the mails to be

used.” (J.A. at 675.) The Court went on to instruct the jury that “[t]he false or fraudulent

representation must relate to a material fact or matter” and, further, that “[a] material fact

is one which would reasonably be expected to be of concern to a reasonable and prudent

person in relying upon the representation or statement in making a decision” or “one that

a reasonable person might have considered important in making his or her decision.”

(J.A. at 677.) Finally, the Court instructed the jury that “it is not necessary that the

government prove that ... Moleski actually realized any gain from the scheme or that any

intended victim actually suffered any loss.” (J.A. at 678.)

       The jury found Moleski guilty of all nineteen counts, and the Court sentenced him

to four and a half years’ imprisonment and five years of supervised release. This timely

appeal followed.




                                               4
II.    Discussion3

       On appeal, Moleski challenges his mail fraud convictions on Counts One through

Twelve, arguing that the government’s evidence of materiality was insufficient for the

jury to find him guilty. A challenge to the sufficiency of evidence supporting a

conviction places on the defendant a burden that is “extremely high.” United States v.

Wright, 665 F.3d 560, 567 (3d Cir. 2012) (internal quotation marks omitted). The verdict

will stand “so long as there is substantial evidence that, when viewed in the light most

favorable to the government, would allow a rational trier of fact to convict.” Id. (internal

quotations marks omitted). Thus, in a prosecution for mail fraud, we will affirm when

the government was able to provide substantial evidence at trial that the defendant

participated in “a scheme or artifice to defraud by means of a materially false or

fraudulent pretense ... .” United States v. Bryant, 655 F.3d 232, 248 (3d Cir. 2011).

       Moleski makes two arguments to challenge the sufficiency of the government’s

evidence of materiality. He first contends that “[t]he government presented insufficient

evidence of ‘materiality’ ..., given that no one was deceived ... by [his] representations ...

.” (Opening Br. at 22.) Proving successful deception, however, is not required to

demonstrate materiality. Neder v. United States, 527 U.S. 1, 25 (1999). Requiring the

government to show successful deception “would clearly be inconsistent” with the mail

fraud statute, because the statute “prohibit[s] the ‘scheme to defraud,’ rather than the

       3
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. The parties disagree as to whether plain error
or plenary review applies to this appeal. We conclude that the convictions stand under
either standard, so we will frame our analysis in terms of plenary review.

                                              5
completed fraud ... .” Id. Thus, in a fraud prosecution, “it is not a defense that the

intended victim was too smart to be taken in.” United States v. Coffman, 94 F.3d 330,

333 (7th Cir. 1996). “To hold otherwise would lead to the illogical result that the legality

of a defendant’s conduct would depend on his fortuitous choice of a gullible victim.”

United States v. Pollack, 534 F.2d 964, 971 (D.C. Cir. 1976); cf. United States v. Coyle,

63 F.3d 1239, 1244 (3d Cir. 1995) (“The negligence of the victim in failing to discover a

fraudulent scheme is not a defense to criminal conduct.”).

       Second, Moleski argues that the government presented insufficient evidence of

materiality because, not only was no one actually deceived, “no one ... could have been”

deceived by his representations. (Opening Br. at 22.) Moleski is correct that materiality

requires a showing that the misrepresentation or omission in question “has a natural

tendency to influence, or is capable of influencing, the decision of the decisionmaking

body to which it was addressed.” Neder, 527 U.S at 16 (internal quotation marks and

brackets omitted).4 Thus, “[t]here may be attempts so feeble ... that the attempter is

entitled to be acquitted, as a harmless fool.” Coffman, 94 F.3d at 333-34.

       Moleski’s scheme, however, was not so feeble that it could not possibly have

harmed anyone. Even if the demands in his documents were ultimately baseless, by

       4
         The Neder Court also endorsed the Restatement’s clarification that
a matter is material if:
       (a) a reasonable man would attach importance to its existence or nonexistence in
       determining his choice of action in the transaction in question; or (b) the maker of
       the representation knows or has reason to know that its recipient regards or is
       likely to regard the matter as important in determining his choice of action,
       although a reasonable man would not so regard it.”
527 U.S. at 22 n.5 (quoting Restatement (Second) of Torts § 538 (1977)) (internal
quotation marks omitted).
                                              6
obscuring them in obtuse legalese he could have confused the busy employees of

financial institutions and the government who had to review them. The government

presented substantial evidence from which a reasonable jury could (and apparently did)

conclude that Moleski’s misrepresentations had the tendency or ability to influence

decisionmakers at the target organizations to disburse funds, clear debts, recognize debts

as repaid, or take other action. The jury had the opportunity to examine Moleski’s

documents, which were long, complex, and official-looking. A documents expert

testified that Moleski’s instruments bore marks of legitimacy and required careful

examination to understand their worthlessness. Finally, the jury heard from the

documents’ recipients, who likewise testified that they had to expend time and energy in

determining the documents’ validity and what course of action to take with them.

Considering this evidence in the light most favorable to the prosecution, the jury could

rationally determine that the documents could deceive their recipients. There was thus

sufficient evidence of materiality to find Moleski guilty of the mail fraud charges he has

appealed.

III.   Conclusion

       For the foregoing reasons, we will affirm.




                                             7
