                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 06 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10604

              Plaintiff - Appellee,              D.C. No. 2:12-cr-01660-JAT-1

  v.
                                                 MEMORANDUM*
JOHN ROWLAND MILLS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                           Submitted February 4, 2015**
                             San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
      John Rowland Mills appeals the district court’s denial of his post-verdict

motion for judgment of acquittal on Count 15 of a 15-Count indictment for federal

wire fraud, 18 U.S.C. § 1343 (2012). Mills was found guilty by a federal jury for

violating 18 U.S.C. § 1343—the federal wire fraud statute—after he embezzled

nearly $130,000 from his employer and used an interstate wire transfer (from

Florida to Arizona) to cover his tracks. We have jurisdiction under 28 U.S.C.

§ 1291 (2012). Because we find that ample evidence supports the guilty verdict,

we affirm.

      We review de novo a district court’s denial of a motion for acquittal. United

States v. Jinian, 725 F.3d 954, 959 (9th Cir. 2013). We affirm a conviction if there

is sufficient evidence to support it. “Sufficient evidence to support a conviction

exists if, ‘after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Id. at 959–60 (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

      Section 1343 criminalizes conduct by an individual who, “having devised or

intending to devise any scheme or artifice to defraud, . . . transmits or causes to be

transmitted by means of wire . . . communication in interstate or foreign

commerce, any writings, signs, signals, pictures, or sounds for the purpose of


                                           2
executing such scheme or artifice . . . .” 18 U.S.C. § 1343. To sustain a conviction

under § 1343, the government must establish that the defendant (1) developed a

scheme to defraud; (2) used a wire, radio, or television in interstate commerce to

further that scheme; and (3) had specific intent to defraud. See United States v.

Pelisamen, 641 F.3d 399, 409 (9th Cir. 2011). Only the second element is at issue

here.

        We have recently considered whether and how the government can meet its

burden at step two where, as here, the defendant uses an interstate wire only after

“all the intended proceeds of the scheme have been obtained.” United States v.

Tanke, 743 F.3d 1296, 1302 (9th Cir. 2014). In Tanke we held that after-the-fact

“mailings designed to avoid detection or responsibility for a fraudulent scheme fall

within the mail fraud statute when they are sent before the scheme is completed.

To determine when a scheme ends, we look to the scope of the scheme as devised

by the perpetrator.” Id. at 1305.1




        1
         Although Tanke addresses the federal mail fraud statute, its holding applies
here because “[i]t is well settled that cases construing the mail fraud and wire fraud
statutes are applicable to either.” United States v. Shipsey, 363 F.3d 962, 971 n.10
(9th Cir. 2004).
                                           3
      Here, we must consider whether any reasonable jury could have found that

Mills’s transfer of nearly $100,000 back into his employer’s account was part of

his embezzlement scheme as he devised it.

      We agree with the district court that the answer to this question is yes.

There is ample evidence from which the jury could conclude that the

embezzlement scheme as devised by Mills always included the cover-up. Mills

told FBI Special Agent Marilyn Shefveland that he originally planned to

“reassemble the hundred thousand dollars to the campaign account” with proceeds

from his business ventures. Mills even intended to pay interest on the money he

took. Mills knew that his employer’s campaign invoices would come due close to

the election (November 4, 2008), and so he was careful to reimburse the account

by October 31, 2008. Mills told Shefveland that he replenished the account

because “he did not want to lose his job.” Interstate transfers—such as

Mills’s—“designed to lull the victims into a false sense of security, postpone their

ultimate complaint to the authorities, and therefore make the apprehension of the

defendants less likely,” fall within 18 U.S.C. § 1343. United States v. Lane, 474

U.S. 438, 451–52 (1986); see also Jinian, 725 F.3d at 962.




                                          4
      Based on the evidence adduced at trial, any rational juror could conclude

that the cover-up, which Mills executed using an interstate wire transfer, was

always an essential part of Mills’s embezzlement scheme.

      AFFIRMED.




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