US v. Holden, No. 16-30186 (7-26-18)(Graber w/M. Smith & Korman).  Did the Courts overstep separation of powers by reading in criminal conduct to a statute?  Specifically, for a scheme to defraud, can a jury convict for "participating" in a scheme when that term never appears in the statute?  In so finding, hasn't the 9th created a common law offense rather than a statutory one.  Interesting argument, although the 9th will shrug and say, we can construe the mail and wire fraud statutes broadly.  By participating in a scheme to defraud -- here investments in foreign biofuel production that came to naught -- the defendant was acting with criminal intent, and his acts in a joint scheme have the features of a conspiracy. It does not matter if he has not devised the scheme; he joins into it with criminal intent and therefore his participation is fraudulent.  The 9th sides with 6th in the ruling.

The 9th did vacate the sentencing and remanded. The record did not support the guideline enhancement for an organizer under 3B1.1.  The evidence did not support that the defendant exercised control over the co-defendant.  There was also inconsistencies with the restitution order (all due now or under the payment schedule? A remand will clear it up).

Kudos to Lisa Hay, FPD Oregon, for a hard fought, and interesting, appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-30186.pdf