13-4042-cr
     United States v. Ng

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of September, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                              Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellant,
15
16                    -v.-                                               13-4042-cr
17
18       YING WAI PHILLIP NG, PUI KUEN NG,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        PAUL TUCHMANN (with David C.
23                                             James on the brief), for Loretta


                *
              Judge Lewis A. Kaplan, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1                              E. Lynch, United States
 2                              Attorney, Eastern District of
 3                              New York, Brooklyn, New York.
 4
 5   FOR APPELLEES:             MICHELLE A. GELERNT (with David
 6                              A. Lewis on the brief), Federal
 7                              Defenders of New York, Inc., New
 8                              York, New York.
 9
10                              ZACHARY MARGULIS-OHNUMA (with
11                              Sharlene Morris on the brief),
12                              New York, New York.
13
14        Appeal from a judgment of the United States District
15   Court for the Eastern District of New York (Glasser, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court is
19   VACATED and REMANDED for further proceedings.
20
21        The United States appeals from the judgment of the
22   United States District Court for the Eastern District of New
23   York (Glasser, J.), dismissing the Information filed against
24   defendants Ying Wai Phillip Ng and Pui Kuen Ng.
25
26        The Ngs, a husband and wife who owned and operated a
27   commercial driving school in Brooklyn, devised a scheme to
28   help their Chinese clients cheat on the written test
29   administered, in English only, by the Department of Motor
30   Vehicles (“DMV”), for a commercial driver’s license (“CDL”).
31
32        Posing as a Mandarin-speaking client, an undercover
33   agent with the Homeland Security Investigations unit (the
34   “UC”) visited the Ngs’ driving school, informed Mrs. Ng that
35   a potential employer wanted to hire him to drive a bus, and
36   arranged for assistance in taking the written CDL exam.
37   Upon urging by the UC, the Ngs both promised not to tell any
38   potential employer how the UC passed the CDL written exam.
39
40        Mr. Ng helped the UC take and pass the CDL exam by use
41   of a paging device and video camera. The UC paid Mr. Ng for
42   his services after completing the test. An applicant who
43   passes the test receives a temporary Class B permit from the
44   DMV; the permit is subsequently mailed to the applicant.
45
46        The Ngs were arrested, waived their right to indictment
47   and pleaded guilty to an Information charging them with a

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 1   single count of conspiracy to commit mail fraud.   The
 2   Information charged that the Ngs:
 3
 4            knowingly and intentionally conspire[d]
 5            to devise a scheme and artifice to
 6            defraud prospective employers of
 7            individuals with CDLs, and to obtain
 8            money and property from those prospective
 9            employers by means of materially false
10            and fraudulent pretenses, representations
11            and promises, and for the purpose of
12            executing such scheme and artifice, to
13            place and to cause to be placed in a post
14            office and authorized depository for mail
15            matter, one or more matters and things to
16            be sent and delivered by the United
17            States Postal Service, to wit: envelopes
18            sent by the DMV containing fraudulently
19            obtained CDLs and commercial CDL Class B
20            permits.
21
22   The district court accepted the Ngs’ guilty pleas, but later
23   questioned the legal sufficiency of the Information. The
24   court ultimately permitted the Ngs to withdraw their pleas
25   and dismissed the Information.
26
27        In finding the Information legally insufficient, the
28   district court recognized that “[i]t is not disputed that
29   the CDL license was not ‘property’ in the hands of the New
30   York DMV.” United States v. Ng, 

, 219
31   (E.D.N.Y. 2013); see Cleveland v. United States, 

  12, 15 (2000) (“We conclude that permits or licenses of this
33   order do not qualify as ‘property’ within [18 U.S.C.]
34   § 1341's compass.”). The district court, however, did not
35   determine whether the salary to be paid to the Ngs’
36   customers by a hypothetical employer could properly be
37   considered “money or property” within the meaning of the
38   mail fraud statute, 

, or whether
39   (as urged by the Ngs) the only loss incurred by a potential
40   employer who hired a customer of the Ngs would be the
41   “‘honest services’ of the imaginary employee which would not
42   be ‘property’ within the meaning of the statute.” 

Skilling v. United States, 

(2010)).
44
45        The district court did not reach these questions
46   because it dismissed the Information on the ground that
47   “[t]he objective of the scheme here was to deceive the DMV,”

                                  3
 1   that this end “was accomplished when the CDL test was passed
 2   and not when the mailing occurred,” 

this was
 3   not the fraud by mail the statute was aimed at,” 

 4
 5        In the district court, the Ngs “concede[d] the
 6   government has satisfied the mail element of the mail fraud
 7   statute.” Therefore, we may properly conclude that any
 8   argument to the contrary was waived. See Sompo Japan Ins.
 9   Co. of Am. v. Norfolk S. Ry. Co., 

, at *18-19
10   (2d Cir. Aug. 6, 2014). In any event, “[t]he gravamen of
11   the [mail fraud] offense is the scheme to defraud, and any
12   ‘mailing that is incident to an essential part of the scheme
13   satisfies the mailing element.’” Bridge v. Phoenix Bond &
14   Indem. Co., 

, 647 (2008) (quoting Schmuck v.
15   United States, 

, 712 (1989)). True, the Ngs
16   “act[ed] with knowledge that the use of the [mails] w[ould]
17   follow in the ordinary course of business.” United States
18   v. Reifler, 

, 96 (2d Cir. 2006) (citation
19   omitted). But, this was sufficient to satisfy the mailing
20   element of the mail fraud statute.
21
22        We remand for the district court to determine whether
23   the Information sufficiently charges that the object of the
24   alleged conspiracy was to deprive its alleged victims –
25   prospective employers – of “money or property” within the
26   meaning of the mail fraud statute and, if so, for further
27   proceedings as may be appropriate. The district court on
28   remand of course will be aware that, after Skilling, no mail
29   fraud conspiracy conviction could stand on a deprivation of
30   honest services theory; proof of the intended deprivation of
31   money or property would be essential.
32
33        For the foregoing reasons, the judgment of the district
34   court is VACATED and this matter is REMANDED for further
35   proceedings before the district court.
36
37                              FOR THE COURT:
38                              CATHERINE O’HAGAN WOLFE, CLERK
39




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