Defendant's mail fraud and money laundering convictions are affirmed in part where returning certain victims' investment in defendant's scheme was intended to "promote the carrying on," of the "scheme" at the heart of the mail fraud counts, by discouraging detection of that scheme. However, they are reversed in part where another transaction that fully refunded one investor's outlay could not be regarded as a crucial element of the "scheme to defraud." Defendant's sentence is vacated where the district court erred in calculating the enhancement to the money laundering sentence under U.S.S.G. section 2S1.1, in determining defendant's fraud offense level under U.S.S.G. section 2F1.1(b)(1), and in imposing the restitution requirement.
Argued and Submitted March 9, 2009
Filed October 22, 2009
Opinion by Judge Berzon
James H. Locklin, Sean K. Kennedy, Los Angeles, CA
Douglas F. McCormick, Thomas P. O'Brien, Robb C. Adkins, Santa Ana, CA