Benedict P. Kuehne, Jon A. Sale, Miami, FL, Robert B. Fiske, Jr. and Carey R. Dunne, Davis Polk Wardwell, New York City, and Steven M. Edwards, Davis, Scott, Weber & Edwards, New York City, for David Brown.
Clark Mervis, Miami, FL, for Tore T. DeBella.
Richard Sharpstein, Miami, FL, for Richard Reizen.
Joel Hirschhorn, Coral Gables, FL, for Robert Ehrling.
Kendall Coffey, U.S. Attorney, Norman Moscowitz, Miami, FL, Linda Collins Hertz and Carol Herman, Asst. U.S. Attys., U.S. Attorney's Office, Miami, FL, for the U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before KRAVITCH and EDMONDSON, Circuit Judges, and EISELE, Senior District Judge.
EDMONDSON, Circuit Judge:
This appeal is one by four defendants, formerly executives with General Development Corporation ("GDC"), who were convicted of defrauding and conspiring to defraud home buyers throughout the 1980's. Their guilt was not proved: insufficient evidence was presented that a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension was devised. We reverse the convictions.
I.
In the 1950's, GDC began buying huge tracts of undeveloped land throughout Florida. Over the years, the company created nine separate Florida communities. GDC first built the infrastructure (including over 3,700 miles of paved roads) necessary to permit residential development. Then, GDC sold lots and homes in these communities; it also permitted local businesses to build on lots purchased from GDC and to sell these lots in competition with GDC. To increase the attractiveness of the communities, GDC encouraged development; for example, the company helped persuade the New York Mets to build their spring training stadium in Port St. Lucie; GDC built and landscaped utility plants; it sold land to churches at below market value; and GDC donated land for schools. The company became the single largest developer in the entire state. Today over 250,000 people live in GDC's Florida communities.
By the 1980's, GDC was selling some of its homes at significantly higher prices than independently built homes within the same neighborhoods. (For example, GDC offered a home it sold for between eighty-five and one hundred thousand dollars as a prize on the "Dream House" game show; the home was later appraised at under fifty thousand dollars.) GDC blamed its prices on higher expenses: the testimony was that independent builders had much lower overhead costs than GDC. Whatever the cause of the price disparity, attempting to sell homes of similar quality in the same neighborhood at a much higher price proved problematic for GDC.
GDC was, however, still able to sell Florida homes to certain customers, mostly those residing in "snowbelt" states. GDC marketed their communities as a great place to own a second home. "One stop shopping" was available for non-residents: GDC buyers could initially purchase just a lot and later trade in that lot, plus any "appreciation" in the price GDC charged for that lot, as a down payment on a home. And, GDC offered in-house financing through GDV, a wholly-owned subsidiary. Florida Home Finders, a property management subsidiary, was designed to help absentee owners rent and maintain Florida property. GDC did not inform its customers that they might be paying much more for these homes than they would for a largely identical one next door.
Customers intrigued by the home sales pitch, and especially those who had already purchased building lots, were encouraged to take a "Southward Ho" trip (a "SoHo"). On SoHo trips, GDC would pay for the customer to travel to Florida and to visit a GDC community for a few days. SoHo travellers were shepherded about Florida by the southern salesforce, who took affirmative steps to "focus" customers on GDC homes only. If the customer remained interested, GDC would have the customer enter an agreement to purchase.
GDC started prohibiting salespeople from recommending financing from entities other than GDV (the government alleged that 80 to 90 percent of buyers financed through GDV), and all financing was processed through GDV. GDV financing agreements, which were signed sometime after contracts to purchase had been made, would note that an appraisal of the property was done. This appraisal compared the home being purchased only with other homes GDC sold nationally, not those selling in the same area for less; thus, the appraisal would show GDV that the home was worth what was being paid. Never were customers shown these appraisals.
Official GDC policy forbade "investment selling," that is, encouraging people to purchase GDC homes as a way to make money as opposed to purchasing a home for use in Florida. And, official GDC literature and form agreements signed by buyers disclaimed the homes' investment potential; for example, a GDC customer "bill of rights" provided: "The land you are purchasing is being sold to you for future use and not as a business investment."
Despite this official policy, certain salesmen sometimes told purchasers that the homes were "safe investments." Some customers were told that rental income would exceed mortgage payments. Some salesmen falsely said that they, personally, owned GDC homes and were making money on them. And, they said that, if a customer would hang onto their homes for a year, the homes could be sold at a profit. Some of GDC's northern sales managers even encouraged these lies. But, salesmen violating official company policy were supposed to be disciplined or fired. In fact, few were disciplined severely; several were retrained, fined, or demoted.
Due to the price disparity, GDC homes were not "good investments." Customers discovered that rental income was sometimes less than GDC's Florida Home Finders had promised. Some owners could find no tenants at all for significant periods. And, several GDC customers found that they could only sell their homes by asking for much less than they paid. In the mid-1980s, GDC established Housing Customer Service (HSC) to deal with customer complaints. Many "value complaints" (that is, complaints that homes were not worth as much as was paid for them) were received. Some customers also claimed that official sales tactics, such as the SoHo, put "blinders" on them. And, the company received some complaints that the salesforce had lied about the investment or income potential of GDC homes. HSC sometimes negotiated settlements with complainants, especially those who had lawyers or were particularly persistent.
Several lawsuits were filed, and GDC received bad publicity. The U.S. Attorney's office began an investigation. GDC, itself, pled guilty to fraud and established a $169 million fund to pay customers; it also filed bankruptcy per Chapter 11. But, the United States also indicted the upper echelon of GDC management for fraud and conspiracy on the sale of GDC homes between 1982 and 1989. At issue in this appeal is the trial of GDC's upper management.
David Brown, a lawyer, was instrumental in the 1985 public offering of GDC, which had been a subsidiary of City Investing. After the offering (which was midway through the indictment period), Brown became Chairman of the Board. Bob Ehrling became president of GDC in 1980 and was ultimately responsible for GDC marketing. Tore DeBella began working for GDC in 1971 after serving as a soldier in Vietnam. By 1981 he had become Senior Vice President of Marketing and oversaw GDC's salesforce. Rick Reizen was Vice President of Housing and active in the sale of homes.
Defendants were each charged with 73 total counts of mail fraud, interstate transportation of persons in furtherance of a fraud, and conspiracy. Their trial lasted nine months. Brown was acquitted on 72 counts but was convicted on one conspiracy count. He was sentenced to 5 years in jail. Ehrling was convicted on 39 counts and sentenced to 121 months in jail. DeBella was also convicted on 39 counts and was sentenced to 97 months. Reizen was convicted on one conspiracy count and sentenced to 5 years. Each was also ordered to pay $500,000 in restitution.
II.
Defendants have appealed their convictions on a variety of grounds. They challenge the sufficiency of the indictment and the sufficiency of the evidence; they also challenge various rulings of the trial court. We begin, and end, our discussion of this case with a review of the evidence against defendants. In general, a review of the evidence is limited to a determination of whether a reasonable juror could find guilt beyond a reasonable doubt. U.S. v. Funt,
896 F.2d 1288, 1292 (11th Cir.1990). All evidence should be viewed in the light most favorable to the government, with all reasonable inferences drawn in favor of supporting the verdict. Id. In deciding this case, we will assume that the evidence establishes basically what the government says it does. First, we assume the evidence showed defendants, through their failure to discipline salespeople or otherwise, acted to authorize misrepresentations by salespeople to customers about value. See U.S. v. Krohn,
573 F.2d 1382, 1386 (10th Cir.1978); U.S. v. Gibson,
690 F.2d 697, 701 (9th Cir.1982). These misrepresentations involved the investment potential of the homes, that is, the re-sale value of the homes or the rental income which could be derived from the homes. As we will repeat many times, no allegations exist that GDC misrepresented the quality of their homes. Second, we assume that defendants instituted, continued, or altered official GDC programs (such as the SoHo, the appraisal methodology, the lot equity trade program (the "LETA") and the housing customer service department) with the intent to disguise the investment potential of GDC homes.
III.
The evidence must show that the acts and intent of defendants places them in violation of the federal criminal laws. Defendants were convicted either of conspiracy to commit federal fraud or of conspiracy, mail fraud and causing the transportation of someone in furtherance of a fraud. If the proof at trial fails to show a scheme to defraud as that term is used in the federal fraud statutes, insufficient evidence exists to uphold a conviction. U.S. v. McNeive,
536 F.2d 1245, 1252 (8th Cir.1976).
Language from some of our earlier opinions suggests that the federal fraud statutes encompass almost any situation. In Gregory v. United States, for example, we wrote that fraud is deviation from conduct that is a "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society."
253 F.2d 104, 109 (5th Cir.1958). But, not all of the language of the judges in an opinion has the force of binding precedent. And, as the Seventh Circuit has noted, such language, "cannot have been intended, and must not be taken, literally." U.S. v. Holzer,
816 F.2d 304, 309 (7th Cir.1987), cert. granted and judgment vacated on other grounds,
484 U.S. 807 , 108 S.Ct. 53, 98 L.Ed.2d 18 (1987) (discussing our Gregory opinion).
Instead, we must closely analyze the statutory language and the facts presented in a particular case; "[t]here are no constructive offenses; and, before one can be punished, it must be shown that his case is plainly within the statute." Fasulo v. U.S.,
272 U.S. 620, 629, 47 S.Ct. 200, 202, 71 L.Ed. 443 (1926) (interpreting the mail fraud statute). And, the Rule of Lenity commands that where there are alternative readings of a criminal statute we are to choose the harsher only when Congress has spoken in clear and definite language. McNally v. U.S., 483 U.S. 350, 358-60, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987) (applying narrowing construction to mail fraud statute). A limitless reading of the mail fraud statute could result in a kind of federal criminal common law, that is, a situation where a person could be convicted of a crime against the United States despite the conduct not violating an express statutory provision. Holzer, 816 F.2d at 309.
With these thoughts in mind, we turn to the substantive statutes upon which these convictions are based to determine whether the evidence proved a crime was committed. The mail fraud statute prohibits devising a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses," which is furthered by use of the mails.
18 U.S.C. 1341; see also, U.S. v. Funt,
896 F.2d 1288, 1292 (11th Cir.1990). Title 18 U.S.C. section 2314 prohibits devising a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses," which induces a person to travel in interstate commerce.
18 U.S.C. 2314; see also, U.S. v. Biggs,
761 F.2d 184, 187 (4th Cir.1985).
The fraud statutes cannot be said to reach only common law fraud. See Durland v. U.S.,
161 U.S. 306, 312-14, 16 S.Ct. 508, 511, 40 L.Ed. 709 (1896); U.S. v. Whitmore, 97 F.Supp. 733, 735 (S.D.Cal.1951) ("For 'the scheme to defraud' punished by the statute is more inclusive than common law 'fraud' "). Although certain elements of common law fraud need not be shown, Congress did not strip the words "defraud" or "false or fraudulent pretenses" of all the meaning these words had before the statutes were enacted. For example, "puffing" or "sellers' talk" is still not actionable under the mail fraud statute. See U.S. v. Pearlstein,
576 F.2d 531, 540 n. 3 (3d Cir.1978) (statements that company "nationally known" and that product "among the finest ... in the world" are "not cognizable under the federal mail fraud statute."). And, probative evidence of mail fraud is the presence or absence of the traditional "badges of fraud." Sawyer, 799 F.2d at 1502.
In addition, in this circuit, mail fraud requires the government to prove that a reasonable person would have acted on the representations. See Pelletier v. Zweifel,
921 F.2d 1465, 1498-99 (11th Cir.1991). To prove a crime, the government must show the defendant intended to create a scheme "reasonably calculated to deceive persons of ordinary prudence and comprehension." Id. at 1498-99 (citing U.S. v. Bruce,
488 F.2d 1224, 1229 (5th Cir.1973)); but see, U.S. v. Brien,
617 F.2d 299, 311 (1st Cir.1980), and U.S. v. Maxwell,
920 F.2d 1028, 1036 (D.C.Cir.1990) (disagreeing with us and holding that mail fraud can lie even where only "most gullible" would be deceived). The "person of ordinary prudence" standard is an objective standard not directly tied to the experiences of a specific person or persons.
In some situations, a reasonable person is always permitted to rely on the recommendations of a particular person; and, certain people must always disclose facts where nondisclosure could result in harm. This circumstance exists when there is a special relationship of trust, such as a fiduciary relationship, between people. See Holzer, 816 F.2d at 307 (fraud includes "the deliberate concealment of material information in a setting of fiduciary obligation."); cf. Chiarella v. United States,
445 U.S. 222, 228, 100 S.Ct. 1108, 1114, 63 L.Ed.2d 348 (1980) ("[o]ne who fails to disclose material information prior to the consummation of a transaction commits fraud only when under a duty to do so."); cf. also, U.S. v. O'Malley,
707 F.2d 1240, 1247 (11th Cir.1983) (state insurance commissioner must disclose contractual relationship). Where a relationship "fiduciary in nature" exists between a defendant and his intended victims, the federal fraud statutes are broadly interpreted and were intended by Congress to "protect the careless and the naive from lupine predators...." U.S. v. Kreimer,
609 F.2d 126, 131, 132 (5th Cir.1980).
In this case, defendants were not in some kind of legal relationship with its customers which required defendants to disclose pricing structures under every circumstance. Instead, GDC and its customers were entering into an arm's length transaction; a transaction which was of considerable financial importance to the customer. Under federal law, GDC (and, a fortiori, these defendants) had no general affirmative obligation to disclose the sales price disparity between its houses and its competitors' houses.
But, it can be criminal fraud for a seller to conceal, or even sometimes fail to disclose, information after already affirmatively misleading customers about material facts. See Sawyer, 799 F.2d at 1502-03 (fraudulent concealment where defendant used false disclosure statements to induce investment); U.S. v. Funt, 896 F.2d at 1294 (must disclose company has no intention to make payment after promising payment to customer); Blachly v. United States,
380 F.2d 665, 672-74, 669 (5th Cir.1967) (concealment criminal where, among other things, defendant informed customers that their signatures on documents turning out to be promissory notes were "merely for purposes of record keeping"); U.S. v. Townley,
665 F.2d 579, 584-85 (5th Cir.1982) (mail fraud where defendant falsely stated company had other machines in operation, showed photographs of other company's equipment and said it was his own, and so on); cf. U.S. v. Biesiadecki,
933 F.2d 539, 543 (7th Cir.1991) (where "government presented extensive evidence of ... affirmative misrepresentations" conviction not improperly based on mere failure to disclose).
We have assumed that the government demonstrated defendants approved and promoted lies about the investment potential of GDC homes. Thus, maybe these representations (combined with later acts to conceal the truth about these representations) could be the basis for criminal fraud. But, again, federal criminal fraud requires proof that a person of ordinary prudence would rely on a representation or a deception. As this court explained in Pelletier, mail fraud requires an objective inquiry; a scheme to defraud--that is, a violation of the mail fraud statute--exists only where a reasonable person "would have acted on the misrepresentations: were the misrepresentations reasonably calculated to deceive persons of ordinary prudence and comprehension." See Pelletier, 921 F.2d at 1498-99. (emphasis omitted) (internal quotation marks omitted).
We know that--under certain circumstances--a person, outside of a fiduciary relationship, can rely on representations of future wealth or investment potential. See U.S. v. Bruce,
488 F.2d 1224, 1229 (5th Cir.1973) (defendant made "impossible representations of possible wealth to potential investors"); U.S. v. Kail,
804 F.2d 441, 445 (8th Cir.1986) (defendant termed coins valuable investment). This circumstance--which is present in most mail fraud cases--arises where a reasonable jury could find that a person of ordinary prudence would not know that he should not rely on these representations.
We conclude in the case before us now that reasonable jurors could not find that a person of ordinary prudence, about to enter into an agreement to purchase a GDC home in Florida, would rely on (that is, in the words of Pelletier, "act on") the seller's own affirmative representations about the value or rental income of the GDC homes. Therefore, a "scheme to defraud" within the meaning of the federal criminal statutes has been not proved.
A "scheme to defraud" under the pertinent criminal statutes has not been proved where a reasonable juror would have to conclude that the representation is about something which the customer should, and could, easily confirm--if they wished to do so--from readily available external sources. See Associates in Adolescent Psychiatry, S.C. v. Home Life Ins. Co.,
941 F.2d 561, 570 (7th Cir.1991) (no scheme to defraud where "the relation between the rates offered ... and those available on other investments can be checked by a quick look at the Wall Street Journal or the Chicago Tribune"); Blount Fin. Servs. v. Walter E. Heller and Co.,
819 F.2d 151 (6th Cir.1987) (no scheme to defraud because reliance on statement unreasonable where matter represented could have been "verified ... independently" from public information); Caraluzzi v. Prudential Securities, Inc., 824 F.Supp. 1206, 1212-13 (N.D.Ill.1993) (if exercise of "ordinary intelligence" would have prevented deception, no scheme to defraud); Compania Sud-Americana de Vapores, S.A. v. IBJ Schroder Bank & Trust Co., 785 F.Supp. 411, 425 (S.D.N.Y.1992) (no scheme to defraud where person could calculate interbank interest rate from public information); cf. U.S. v. Parker,
839 F.2d 1473, 1480-81 (11th Cir.1988) (mail fraud conviction reversed where "loose," but not "wholly unfounded" descriptions may have deceived some customers); cf. also U.S. v. Goodman,
984 F.2d 235, 240 (8th Cir.1993) (reversing mail fraud conviction where the "naive and imprudent" were deceived). In this case, the relevant market prices are not difficult to investigate. The essential pricing information can be obtained by nonexperts readily, for example, by a telephone call or a visit to a GDC competitor or by a look at newspaper classified ads.
As we have pointed out, long-established common-law fraud concepts inform--but do not control--our discussion of the evidence necessary to support a conviction under the mail fraud statute, especially in the light of the requirement that federal criminal statutes be interpreted narrowly; such case law upholds our view that the evidence in this case supports no violation of the statutes. See Kaye v. Pawnee Const. Co., Inc.,
680 F.2d 1360, 1368 (11th Cir.1982) (no right to rely on representations as to market value under Alabama law); Sacramento Suburban Fruit Lands Co. v. Melin,
36 F.2d 907, 910-11 (9th Cir.1930) ("no rule that where parties to an exchange have an equal opportunity to determine value, one may neglect the opportunity and subsequently avoid the transaction merely because an inflated value is fixed by the other party" and no fraud where help valuing property "easily accessible" or found in "publications containing dependable data"); Chiodo v. General Waterworks Corp.,
380 F.2d 860, 867 (10th Cir.1967) (no fraud because victim "had the opportunity to have full knowledge of the true value of [the] stock"); Simms v. Biondo, 816 F.Supp. 814, 820, 822 (E.D.N.Y.1993) ("the doctrine of caveat emptor applies to real estate transactions such that a buyer has a duty to satisfy himself or herself of the quality of a bargained purchase price without trusting a seller" and "facts which are accessible as a matter of public record bar a claim of justifiable reliance necessary to sustain a cause of action for fraud."); Gamel v. Continental Ins. Co., 463 S.W.2d 590, 595 (Mo.Ct.App.1971) (no fraud about value of insured property--even though defendant represented it was worth more than 11 times what he had paid a year earlier--where plaintiff "had the opportunity" but failed to raise questions about property's value); Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 399 P.2d 822, 831 (1965) (no fraud where prices of competitors available "by checking with various appliance stores, including the Montgomery Ward and Sears Roebuck catalogs").
We stress this matter is not a "sale of distant property" case: the kind where the purchaser has no chance to investigate the property's condition and value. To the contrary, GDC by SoHos and other similar programs for lot sales actively encouraged potential customers to visit Florida to inspect their GDC home or community before buying. See Sacramento Suburban Fruit, 36 F.2d at 910 (no fraud because plaintiff "came to California to see and investigate for himself" the property); McNabb v. Thomas,
190 F.2d 608, 611 (D.C.Cir.1951) (no fraud where plaintiff "visited the [property] twice"); Simms, 816 F.Supp. at 821 (plaintiff "conducted what he considered to be a full investigation of [the property] before entering into the Contract of Sale."); Reeder, 399 P.2d at 830 ("an action for damages on the ground of fraud cannot ordinarily be based on representations of value [where] the property is subject to full inspection by the purchaser.").
We have also considered whether GDC could be criminally liable for preventing customers from discovering the Florida real estate market and the unattractiveness of GDC's price within that market. We, in the light of the open availability of information about the sale of homes, suspect that only very rarely (if ever) could a reasonable jury find that a defendant effectively prevented the discovery of market prices for Florida homes, especially when the purchaser visited Florida in conjunction with the purchase. Important in this case, the government conceded at trial that no allegation is made that GDC ever used "illegal force" or "kidnapping" to prevent customers from investigating the housing market while on the SoHo trip. In addition, no allegation is made that customers who knew they were traveling to Florida at GDC's expense on SoHos for the express purpose of shopping for a home were barred from looking for better deals either before or after their trip to Florida. Where a company pays for customers to visit, pays for their meals, provides their transportation and pays for their rooms, not every step requiring customers to discover a better bargain through the customers' own investigation is unlawful. Under the circumstances in this criminal case, no reasonable jury could find that GDC prevented, in a way that would make reliance on GDC's value representations reasonable, people of ordinary prudence from discovering what houses in Florida sold for and rented for and how the price of GDC homes compared to comparable properties in Florida. See Reeder, 399 P.2d at 831 (no fraud because "[h]ad [plaintiff] been interested in the value of the [product] prior to making the purchase, he could readily have ascertained its value just as he did after the purchase was made.").
GDC provided its purchasers with what was promised--a home in a pre-planned Florida community. While these homes might not be "worth" as much as some buyers would want, no one disputes that these GDC homes are of considerable value; and, we stress this case is not a case where a seller promised great value but sold something actually worthless or completely unfit for the purchaser's purpose. The GDC homes are not alleged to be defective in construction and hundreds of thousands of Floridians live in GDC's communities today; tens of thousands live in GDC-built homes. Defendants exaggerated the market value of these homes. These homes, however, are good homes--as far as was alleged by the government, just as good as were promised by GDC--it is just that some GDC customers could have obtained a similar home for less money.
IV.
"The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely." Robert Bolt, "A Man For All Seasons" Act II, 89 (Vintage 1960) (speech of Sir Thomas More). To be free of tyranny in a free country, the causeway's edges must be clearly marked. The exercise of federal government power to criminalize conduct and thereby to coerce and to deprive persons, by government action, of their liberty, reputation and property must be watched carefully in a country that values the liberties of its private citizens. Never can we allow federal prosecutors to make up the law as they go along. So, we today heed the warning of the Supreme Court and "hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable." U.S. v. Trenton Potteries Co.,
273 U.S. 392, 398, 47 S.Ct. 377, 379, 71 L.Ed. 700, 705 (1927).
Looking at the evidence in this case, our worry is that the criminal fraud statutes were used to convict four people simply for charging high prices--all allegations of misconduct in this case involved the price customers paid for their homes, not the physical qualities of these homes. The government tries to draw a distinction; they say these men were convicted for deceptions about these high prices. For us, at least in the context of home sales and of the openness of the Florida real estate market, this distinction is a distinction without meaning.
Construing the evidence at its worst against defendants, it is true that these men behaved badly. We live in a fallen world. But, "bad men, like good men, are entitled to be tried and sentenced in accordance with law." Green v. U.S.,
365 U.S. 301, 309, 81 S.Ct. 653, 658, 5 L.Ed.2d 670 (1961) (Black, J. dissenting). And, the fraud statutes do not cover all behavior which strays from the ideal; Congress has not yet criminalized all sharp conduct, manipulative acts, or unethical transactions.
We might prefer that Brown, Ehrling, DeBella and Reizen would have told these customers to shop around before buying. But, "there are ... things ... which we wish that people should do, which we like or admire them for doing, perhaps dislike or despise them for not doing, but yet admit that they are not bound to do." John Stuart Mill, Utilitarianism 60 (O. Piest, ed., Bobbs-Merrill 1957) (1861). Although the line between unethical behavior and unlawful behavior is sometimes blurred--especially under the federal fraud statutes--we, in the absence of clear direction from Congress, conclude that the behavior established by the government's evidence in this case is not the kind that a reasonable jury could find, in fact, violated the federal fraud statutes. Likewise, no reasonable jury could find an agreement to violate the fraud statutes. Defendants' conduct does not fall plainly within the pertinent prohibitions.
We reach none of the other assertions of error in this case, except to note that we think they might have considerable merit. We reverse the convictions and direct that the charges against these four defendants be dismissed.
REVERSED.
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