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United States v. Lack

November 4, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

DARRELL H. LACK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin.

No. 96 CR 57 -- John C. Shabaz, Chief Judge.

Before BAUER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED SEPTEMBER 19, 1997

DECIDED NOVEMBER 4, 1997

After a bench trial based on stipulated facts, the United States District Court for the Western District of Wisconsin found Darrell H. Lack guilty of one count of mail fraud and eleven counts of interstate transportation of stolen securities, in violation of 18 U.S.C. sec.sec. 2, 1341 and 2314. Mr. Lack then appealed to this court. For the reasons set forth in the following opinion, we affirm the decision of the district court.

I. BACKGROUND

A. Pre-trial Facts

On August 21, 1996, a federal grand jury sitting in the Western District of Wisconsin returned a twelve-count indictment against Mr. Lack. Count I of the indictment alleged that Mr. Lack committed and aided and abetted a mail fraud in violation of 18 U.S.C. sec.sec. 1341 and 2. Specifically, Count I charged that, from on or about August 14, 1991 to June 16, 1995, Mr. Lack, "having devised a scheme to defraud and for the purpose of executing that scheme, knowingly caused mail matter to be placed in the mail and delivered by the United States Postal Service." R.2 at 1. Counts II through XII charged Mr. Lack with the interstate transportation of stolen securities in violation of 18 U.S.C. sec.sec. 2314 and 2. Each of those counts alleged that Mr. Lack knowingly and intentionally caused to be transported from Wisconsin to Minnesota or Georgia a specified stolen check with a value exceeding $5,000.

Prior to trial, Mr. Lack, essentially raising the same arguments he raises before this court, moved to dismiss all counts of the indictment for failure to allege the particular statutory offense. The district court denied Mr. Lack's motion to dismiss; it found all counts of the indictment to be sufficient and valid. Mr. Lack then waived his right to a jury trial, and on December 10, 1996, the parties filed a stipulation of facts with the court to be used for a bench trial on December 11, 1996.

B. Stipulated Facts

Mr. Lack was employed as the materials manager by Dairyland Power Cooperative ("Dairyland"), a utility company located in LaCrosse, Wisconsin. In that capacity, he was responsible for the salvage and scrap operation of Dairyland which involved, among other things, the sale of various scrap or salvage items on behalf of Dairyland. Mr. Lack's job, therefore, was to sell items of equipment that his employer no longer needed. Sometime prior to August 1991, Mr. Lack became upset with Dairyland because several people had received advancements within the company and he had not. Due to his belief that he had been treated unfairly, Mr. Lack decided to take retaliatory action against the company. Specifically, he devised a scheme to steal money from Dairyland.

Mr. Lack launched his scheme on August 14, 1991 by opening a checking account at a bank in Madison, Wisconsin in the name of Darrell H. Lack, d/b/a Dairyland Power Conversion, division of Midwest Computer. *fn1 As a result of his opening this account, the bank mailed, on a monthly basis between August 1991 and May 1995, account statements to an address provided by Mr. Lack. These statements contained a complete record of the status of the account for the previous month, including account balances and an identification of all credits and withdrawals to the account. The bank mailed the statements via the U.S. mails.

Once this account was opened, Mr. Lack began his scheme: In his capacity as materials manager, he would sell an item to a buyer. The buyer would pay by check, and Mr. Lack would deposit the check in the aforementioned account rather than forwarding it to his employer. Mr. Lack then would transfer funds from the Madison account to another account in LaCrosse. Occasionally, Mr. Lack would request a bank check from this second account for a smaller amount made out ...


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