reasoning in United States v. Regan, 699 F. Supp. 36, 40 (S.D.N.Y. 1988) (emphasis added)). Accordingly, because the indictment against Gottlieb and Segal alleges a purpose of financial gain via a scheme which involved fraudulent representations to the IRS and the IDR, we find that the indictment suffices under the "money or property" requirement of McNally.
Additionally, the Seventh Circuit in Bucey made clear that the mail fraud statute punishes the scheme to defraud; thus, "the ultimate success of the fraud and the actual defrauding of a victim are not necessary prerequisites to a successful mail fraud prosecution." Bucey, 876 F.2d at 1311 (emphasis in original); accord Keane, 852 F.2d at 205. It is true that in Gimbel, the Seventh Circuit earlier declined to express any view regarding the validity of indictments alleging schemes that had not reached fruition and in which no loss of money or property resulted. See Gimbel, 830 F.2d at 627 n. 3. Nevertheless, later on in Bucey, the Seventh Circuit specifically addressed this issue after a review of its holdings in Gimbel and Eckhardt, and endorsed the view that a putative monetary detriment satisfied the McNally requirement. Bucey, 876 F.2d at 1309-10 (quoting Regan, 699 F. Supp. at 40). The actual defrauding of the government, therefore, is not necessary to uphold an indictment which alleges a scheme to defraud the government. See Bucey, 876 F.2d at 1311. Consequently, the fact that Gottlieb and Segal's indictment did not allege that the IRS or the IDR actually lost or would have lost tax revenue does not warrant vacation of either Gottlieb's or Segal's conviction. See Bucey, 876 F.2d at 1311.
Moreover, the potential property loss sufferable by the IRS and the IDR in this case is not so speculative as to mandate coram nobis relief. Paragraph 12 of the indictment clearly charges that the secret fund consisted of over $ 100,000 per legislative session. Thus, the indictment alleges that Gottlieb and Segal concealed $ 100,000 per legislative session through their fraudulent use of the IRS Forms 990 with the intent to produce financial gain for themselves and their currency exchange businesses; any tax owing on that amount of money can be "readily identified." See United States v. Folak, 865 F.2d 110, 114 & n. 2 (7th Cir. 1988) (court found that some money or property loss was readily identifiable where defendants either pocketed a portion of money or helped themselves to a portion of the business' inventory or both, and where the state presumably lost money under one of the counts in the indictment) (emphasis added).
In addition, the potential property loss alleged here is no more speculative than the property loss alleged in Doe. There, the indictment charged the defendant with reducing property tax assessments. Doe, 867 F.2d at 988-89. The Seventh Circuit upheld the conviction because the indictment alleged a scheme to defraud the county of property within the meaning of McNally. Doe, 867 F.2d at 989. Although it is conceivable that a reduction in tax assessments may not necessarily cause a decrease in tax liability, under these circumstances, the court inferred that the county in fact lost tax revenue. See Doe, 867 F.2d at 989. Similarly, this Court concludes that given the alleged intent to gain financial benefits, the fraudulent use of the IRS Forms 990 presumably caused loss of tax revenue assessable against the more than $ 100,000 per legislative session concealed by Gottlieb and Segal.
Finally, it is well established that the mail fraud statute protects governmental bodies as long as the protection encompasses property rights. See McNally, 483 U.S. at 358 n. 8.
Governments have a property interest in their collected and uncollected tax revenues. See Doe, 867 F.2d at 989 (where the Seventh Circuit cited several Illinois statutes demonstrating a governmental property interest in collected or uncollected tax revenues); Manning v. Seeley Tube & Box Co., 338 U.S. 561, 566, 94 L. Ed. 346, 70 S. Ct. 386 (1950) ("Congress intended the United States to have the use of money lawfully due when it became due.") A scheme to defraud the government of property is not invalid merely because the government's property interest in tax revenue does not vest until a tax deficiency is declared. See Bucey, 876 F.2d at 1310 (quoting Regan, 699 F. Supp. at 40). It is irrelevant whether the government has a vested property interest during the life of the scheme. Bucey, 876 F.2d at 1310 (quoting Regan, 699 F. Supp. at 40). Rather, the relevant issue is whether the government would be deprived of revenue if the alleged scheme was brought to fruition. Bucey, 876 F.2d at 1310 (quoting Regan, 699 F. Supp. at 40). Under Bucey, if an alleged scheme, when brought to fruition, would deprive a government of tax revenues, the connection between the challenged conduct would not be "too tenuous . . . to constitute an actual deprivation of money or property." See Eckhardt, 843 F.2d at 997.
The indictment here charges Gottlieb and Segal with a scheme to fraudulently conceal the secret fund from the IRS and the IDR with the intent to gain financial benefits. We conclude that the alleged scheme, if brought to fruition, would deprive the IRS and the IDR of property within the meaning of McNally. Accordingly, the indictment states an offense cognizable under McNally as to both Gottlieb and Segal.
For the reasons outlined, this Court denies the motions of Gottlieb and Segal to vacate their respective convictions pursuant to the writ of error coram nobis, 28 U.S.C. 1651(a).
IT IS SO ORDERED.