Andrew Loney participated in a scheme with an employee of American Airlines to add bogus mileage to frequent flyer accounts and to issue award coupons based upon that mileage. He now challenges his conviction of six counts of wire fraud and one count of conspiracy to commit wire fraud. Finding no error, we affirm.

This case involves American Airlines's frequent flyer program, the AAdvantage^TM program.1 Members of the program receive credit for miles traveled on American Airlines, and they may use that credit to obtain awards, including coupons that can be exchanged for free or reduced-fare tickets on American and certain other airlines. Sonja Jefferson was employed as an AAdvantage customer service representative; her duties included making mileage credit entries to AAdvantage members' accounts via her computer terminal. Jefferson devised a scheme to add thousands of unearned miles to the accounts of friends and relatives, enabling them to receive flight coupons based upon the bogus mileage.

Jefferson's and Loney's families had been longtime friends. At the request of Loney, Jefferson located dormant accounts and replaced the names and addresses on those accounts with names and addresses supplied by Loney. She then would add large numbers of miles to these accounts and issue coupons for airline tickets, based upon the bogus mileage, to the names provided by Loney. In a kickback arrangement, Loney sold the coupons to the persons in whose name they had been issued and remitted part of the money to Jefferson. Another American Airlines employee uncovered the scheme when a customer, whose account had been altered, complained.

Loney was charged with twelve counts of wire fraud and aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343, and one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371.2 He was convicted on six of the substantive wire fraud counts and on the conspiracy count. Loney filed a motion for new trial and, at the district court's suggestion, a proffer of evidence. The court denied the motion without an evidentiary hearing.

The federal wire fraud statute punishes "[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," uses interstate communication "for the purpose of executing such scheme or artifice." Section 1343.3 Loney contends that there is insufficient evidence to sustain his conviction on the six substantive wire fraud counts. Although he phrases his argument as a sufficiency-of-the-evidence challenge, the crux of his contention is that he could not be convicted of wire fraud as a matter of law because he did not defraud American Airlines of any "property" as required by the statute. We review this issue of law de novo. United States v. Siciliano, 953 F.2d 939, 942 (5th Cir.1992).

Loney's focus on property stems from McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). There, the defendants were convicted of mail fraud4 for their involvement in a scheme in which one defendant, a public official,5 used his influence to channel state insurance business to an insurance agency that then shared the commissions generated with other insurance agencies, including one in which the defendants had an undisclosed interest. The prosecution's principal theory was that the defendants participated "in a self-dealing patronage scheme [that] defrauded the citizens and government of Kentucky of certain 'intangible rights,' such as the right to have the Commonwealth's affairs conducted honestly." Id. at 352, 107 S.Ct. at 2877.

After surveying the legislative history and purpose behind the fraud statute, the McNally Court concluded that it did not cover deprivations of the right to honest governmental services but instead was "limited in scope to the protection of property rights." Id. at 360, 107 S.Ct. at 2882.6 The Court thus reversed the defendants' convictions on the ground that the jury "was not required to find that the Commonwealth itself was defrauded of any money or property." Id.

Loney argues that award coupons are not "property" for purposes of the federal wire fraud statute, citing TransWorld Airlines v. American Coupon Exch., 913 F.2d 676 (9th Cir.1990) (TWA ). There, the court concluded that frequent flyer award coupons represent "contract rights" instead of "property rights." Id. at 686-88. TWA is distinguishable, however, in that the court was characterizing award coupons for purposes of the "public policy against restraints on alienation of property." Id. at 685. The case involved a restriction that TWA had placed on the use of award coupons that prohibited the frequent flyer member from assigning awards to anyone other than a relative or legal dependent.7 The court upheld the restriction as a valid restraint on the assignability of a contract, noting that "the public policy against restraints on the alienation of property is no impediment to the enforcement of TWA's" restriction. Id. at 686.

The court went on to note, however, that airline tickets could be construed as "property" for other purposes:There is, to be sure, language in some cases that tends to support the argument that tickets are 'property,' but we believe most of these passing references have occurred in circumstances where 'property' was equated with 'things of value.' ... [T]he same principle would seem to underlie those decisions holding tickets to be 'property' embraced by theft statutes....

Id. at 688 (emphasis added) (citations omitted).

This "things of value" definition was utilized by the McNally Court, which suggested that the words "to defraud" in the federal fraud statutes "commonly refer 'to wronging one in his property rights by dishonest methods or schemes,' and 'usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.' " 483 U.S. at 358, 107 S.Ct. at 2881 (citing Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512, 68 L. Ed. 968 (1924)) (emphasis added). There is no question that a flight award coupon is "something of value," for it can be used to obtain free flight tickets.8 Moreover, we construe "property" in a broad sense for purposes of the federal fraud statutes. McNally, 483 U.S. at 356, 107 S.Ct. at 2879. Consequently, the rule of lenity does not apply. We therefore reject Loney's argument that award coupons are not "property" under McNally.9

But even if we assume arguendo that award coupons are not property, Loney's conviction still stands. His scheme was designed to defraud American of its lawful revenues, which is actionable under the statute. See United States v. Patterson, 528 F.2d 1037, 1041 (5th Cir.) (citing Scott v. United States, 448 F.2d 581 (5th Cir.1971), cert. denied, 405 U.S. 921, 92 S. Ct. 955, 30 L. Ed. 2d 791 (1972)), cert. denied, 429 U.S. 942, 97 S. Ct. 361, 50 L. Ed. 2d 313 (1976).10 Indeed, the statute criminalizes deprivations of "money or property," not just property.11

The scheme in this case is quite similar to that involved in Patterson. There, the defendant devised a plan to defraud the telephone companies of their lawful revenues by marketing "blue boxes," which enable a person to bypass the regular electronic circuitry used for recording calls. Thus the "blue boxes" allow persons to make calls without being charged for them. The defendant in Patterson was caught when he attempted to sell one of the devices to a phone company employee who was posing as a booking agent for a musical group.

The Patterson defendant devised a way to get something--phone calls--for nothing. Similarly, Loney devised a way to get award coupons based upon bogus mileage. And like the Patterson defendant, Loney wanted to make money on the scheme. Thus, he sold the coupons to others, remitting some of the money to Jefferson and keeping some for himself. That money should have gone to American Airlines.12

Loney appears to anticipate these arguments, for he maintains that the government failed to show that American Airlines actually suffered financial loss.13 But such a showing is not necessary. A wire fraud offense requires proof of (1) a scheme to defraud and (2) the use of, or causing the use of, wire communications in furtherance of the scheme. United States v. St. Gelais, 952 F.2d 90, 95 (5th Cir.1992); United States v. Shively, 927 F.2d 804, 813 (5th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 2806, 115 L. Ed. 2d 979 (1991). In addition, the government must prove a specific intent to defraud, which requires a showing that the defendant intended for some harm to result from his deceit. St. Gelais, 952 F.2d at 95. The government does not need to prove that the harm actually came about, however.

As the Second Circuit has noted, "[i]t need not be shown that the intended victim of the fraud was actually harmed; it is enough to show defendants contemplated doing actual harm, that is, something more than merely deceiving the victim." United States v. Schwartz, 924 F.2d 410, 420 (2d Cir.1991). See also Patterson, 528 F.2d at 1041 ("[t]here is no necessity for the government to prove actual financial loss").14 Indeed, the plain language of the statute does not criminalize causing actual harm to the victim; rather, it proscribes the use of a wire communication in furtherance of a "scheme or artifice to defraud" that one has devised.15

Since we have resolved in the affirmative the question of whether Loney's scheme, if proven, fell within the purview of the statute, the only remaining issue is whether the government met its burden of proof. Viewing the evidence in the light most favorable to the government, see United States v. Contreras, 950 F.2d 232, 235 n. 1 (5th Cir.1991), we find that there is ample evidence, including Jefferson's testimony, that Loney schemed to defraud American Airlines of its lawful revenues and property and used the wires to further that scheme.16 We therefore conclude that there is sufficient evidence to sustain Loney's conviction on the substantive wire fraud counts.

Loney also challenges his conspiracy conviction. Although he phrases his argument in terms of a challenge to the sufficiency of the evidence, the essence of his argument is that he could not have been convicted for conspiracy because the United States was not the "target" of the conspiracy. Again, we apply a de novo standard of review.

Loney's conviction for conspiracy to commit wire fraud rests on 18 U.S.C. § 371, which criminalizes a conspiracy "to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose...." Thus, section 371 punishes two distinct types of conspiracies: those "to commit any offense against the United States" and those "to defraud the United States." United States v. Haga, 821 F.2d 1036, 1039 (5th Cir.1987) ("Cases construing section 371 have made it plain that the 'commit any offense' clause and the 'defraud the United States' clause describe different criminal offenses...."). Loney was indicted and convicted of an "offense"-type conspiracy.

Loney bases his argument upon Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987), in which the defendants conspired to defraud a private corporation that had received federal financial assistance and thus was subject to federal supervision. The defendants argued that their convictions under the "defraud" prong of section 371 should be reversed because the corporation was a private entity, despite its receipt of federal assistance.

The Court agreed, holding that the United States and its agencies must be the target of a conspiracy "to defraud the United States." As the Court noted, "[t]he conspiracies criminalized by § 371 are defined not only by the nature of the injury intended by the conspiracy, and the method used to effectuate the conspiracy, but also--and most importantly--by the target of the conspiracy." Id. at 130, 107 S.Ct. at 2752.

Loney argues that the United States must be the target of a conspiracy under the "offense" prong as well. He urges that in order to conspire to commit "any offense against the United States," the United States must be the victim (or target) of that conspiracy. The government, on the other hand, argues that the phrase should be read to reach conspiracies to commit any offense against the laws of the United States--in other words, conspiracies to commit a federal offense. This question has divided the circuits. See United States v. Gibson, 881 F.2d 318 (6th Cir.1989) (United States need not be the target of an offense-prong prosecution); United States v. Hope, 861 F.2d 1574 (11th Cir.1988) (contra: "The holding in Tanner ... applies with equal force to the 'any offense' clause of § 371 as it does to the 'defraud' clause.").

The Eleventh Circuit, however, may soon change its mind. In United States v. Falcone, 934 F.2d 1528, 1538 (11th Cir.1991), vacated and en banc rehearing granted, 939 F.2d 1455 (11th Cir.1991), the court applied Hope to the facts before it but questioned its reasoning. In a special concurrence written by Chief Judge Tjoflat17 and joined by Judge Kravitch and retired Justice Powell, the court thoroughly examined the history behind section 371 and concluded that the statute should not be read to require that the United States be a target of an "offense" prong conspiracy.

As the Chief Judge noted, the statutory precursor to section 371 punished conspiracies "to commit any offense against the laws of the United States." Id. at 1548 (Tjoflat, C.J., specially concurring) (emphasis added by court). Congress revised and codified the statute in 1873, omitting the "the laws of" language. However, "[t]his omission was not ... intended to change the substantive meaning of the statute," as the revisors had no authority to make substantive changes in the law. Id. Thus, when courts faced the new language in the late nineteenth and early twentieth centuries, they interpreted the change as nonsubstantive. Id. at 1548-49 (listing cases). In fact, in 1921 the Supreme Court stated that section 371's precursor covered conspiracies to violate all federal statutes. Id. at 1549 (discussing United States v. Hutto, 256 U.S. 524, 529, 41 S. Ct. 541, 543, 65 L. Ed. 1073 (1921)).

Chief Judge Tjoflat also noted that he did not think "that the Tanner Court intended to remove from the offense clause of section 371 the wide range of conspiracies to violate laws of the United States...." Id. He went on to list numerous cases--both before and after Tanner--in which the government successfully prosecuted defendants under the "offense" clause where the United States was not the object of the conspiracy. Id. at 1549-50 (citing cases).

Finally, as Chief Judge Tjoflat pointed out, the "offense against the United States" language can be found in numerous provisions of the United States Code. Id. at 1550-51. It is interesting to note that 18 U.S.C. § 2, under which Loney was convicted for aiding and abetting, contains such language.18 Loney does not contend, however, that one cannot "aid and abet" wire fraud because the target of the wire fraud in this instance was not the United States.

In light of the Eleventh Circuit's rehearing of Falcone and the persuasiveness of the Sixth Circuit's rationale, we join the latter in holding that the United States need not be the target of section 371 "offense" prong conspiracy. While this court has not directly addressed the issue, it--like the Eleventh Circuit--has affirmed numerous convictions (both before and after Tanner ) under the "offense" clause where the United States has not been the object of the conspiracy.19 We decline to read Tanner in such a way as to cast doubt on these decisions. Given the history behind section 371, we believe that the better reading of the statute is that the "offense" clause criminalizes those conspiracies that contemplate the commission of an offense that is made illegal by federal law. Given that there is ample evidence that Loney conspired to commit wire fraud, we uphold his conviction of conspiracy.

Loney next contends the district court erred in admitting the government's Exhibit # 21. We review a district court's admission of evidence for abuse of discretion. United States v. Moye, 951 F.2d 59, 61 (5th Cir.1992).

American Airlines keeps detailed records of its AAdvantage accounts on a computer database. When the account manipulation came to its attention, it conducted a computer search of its records, asking that the computer find accounts in which there had been a name change, the addition of 50,000 or more bonus miles, and the issuance of certificates soon after the addition of the bonus.20 The result of the search is what became Exhibit # 21--a thirty-five-page compilation of computer records that provides information on approximately seventy accounts, including, among other things, the name under which the account was originally opened, the number of bonus miles added to the account, the name to which the account was changed, the number of the award coupon, the date on which a ticket was issued in exchange for the coupon, and the value of the ticket. At trial, the government connected Loney to several of the manipulated accounts listed in the exhibit.

Loney contends that Exhibit # 21 was inadmissible hearsay because it does not fall under the business records exception of Fed.R.Evid. 803(6), which permits the admission of "[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by ... a person with knowledge, if kept in the course of a regularly conducted business activity...." Loney argues that Exhibit # 21 was not "kept in the course of a regularly conducted business activity" because it was made "in anticipation of litigation."

Loney, however, misconstrues the "regularly conducted business activity" requirement. Rule 803(6) does not require that the summary of the data be kept in the regular course of business. Rather, it is the underlying data that must be so kept. And Loney does not challenge the government's foundation for admitting the underlying data.21 Once the underlying data is admissible under the business records exception, a summary of that data can be admitted under Fed.R.Evid. 1006, which permits the parties to present a "chart, summary, or calculation" where "[t]he contents of voluminous writings ... cannot conveniently be examined in court." Thus, the district court properly admitted Exhibit # 21 under rules 803(6) and 1006.

Loney's real complaint appears to be that Exhibit # 21 contained evidence "of numerous transactions, between Jefferson and persons other than Loney, with which transactions Loney had absolutely nothing to do." He argues that evidence of these transactions was irrelevant and unduly prejudicial. It does not appear, however, that Loney objected to the exhibit on relevance grounds--as opposed to hearsay grounds--during trial.22 We therefore are obligated to use a plain error standard of review. Fed.R.Crim.P. 52(b).

In order to justify a departure from the contemporaneous objection rule, an error must be of a nature that it would result in a miscarriage of justice if not remedied. Contreras, 950 F.2d at 239. Loney cannot make this showing. As discussed more fully below, the jury carefully scrutinized the evidence and convicted Loney of only those transactions with which he was associated. We therefore decline to reverse Loney's conviction on this ground.23

Loney's fourth ground for error is that there was a fatal variance between the allegations of conspiracy in the indictment and the proof adduced at trial. Loney bases his argument on the fact that the conspiracy count alleges that

[i]t was a part of the conspiracy that ANDREW J. LONEY, defendant, and Sonja Maria Jefferson would and did fraudulently cause the issuance of American and Pan Am tickets of a value of approximately $269,077.42, in return for the fraudulently issued AAdvantage mileage credits.

Loney argues that the dollar figure in the indictment reflects the sum of the fraudulent transactions in which Jefferson was involved (the sum of the fraudulent transactions in Exhibit # 21), including those that did not involve him. He concludes from this that, instead of the "grand conspiracy" alleged in the indictment, the government proved (at most) only a number of smaller conspiracies, one of which involved Loney.

First, we take issue with Loney's characterization of the government's theory in the indictment as a "grand conspiracy." Although the government apparently did use Exhibit # 21 for arriving at an estimate of the value of the award coupons,24 the rest of the indictment does not attempt to connect Loney with the approximately seventy transactions listed in Exhibit # 21, let alone even mention them. In addition to the portion quoted above, the conspiracy count charges as follows:

It was a part of the conspiracy that ANDREW J. LONEY, defendant, would supply Sonja Maria Jefferson with the names of persons not authorized to use the AAdvantage accounts.

It was a part of the conspiracy that Sonja Maria Jefferson would and did enter name and address changes on the computer, changing the names and addresses on the AAdvantage account information listed in American's computer, for approximately twenty (20) AAdvantage accounts, removing the name and address of an actual member and fraudulently substituting a name and address supplied by ANDREW J. LONEY, of a person not authorized to use that account. [Emphasis added.]

Thus, although Jefferson may have been involved in dozens of transactions, the indictment charged Loney with committing wire fraud on only twelve occasions and with conspiring with Jefferson with regard to approximately twenty accounts. Moreover, the government did not attempt to tie Loney to all the transactions listed in Exhibit # 21 at trial. Instead, the government called the jury's attention to only fourteen transactions, twelve of which were alleged in the substantive wire fraud counts.

Even if we assume that there was a variance, however, "the variance would not be reversible error unless it prejudiced [the defendant's] substantial rights." United States v. Richerson, 833 F.2d 1147, 1155 (5th Cir.1987). This Loney has not shown.

Loney argues it is likely that he was prejudiced by the variance because the jury could have mistakenly attributed all the transactions listed in Exhibit # 21 to him. The jury, however, was not so confused. It convicted Loney of six counts of wire fraud and acquitted him of six counts. The six counts on which he was acquitted involved transactions between Jefferson and Loney's father, Aston. Aston and Jefferson testified that Loney had nothing to do with these transactions, and the jury obviously believed that testimony (as Loney himself observes in his brief). Thus, the jury carefully weighed the evidence presented at trial and convicted Loney only on those transactions in which he was involved.25

Finally, and most importantly, we held in Richerson that there can be no substantial prejudice where "the Government proves multiple conspiracies and a defendant's involvement in at least one of them...." Id. (quoting United States v. L'Hoste, 609 F.2d 796, 801 (5th Cir.), cert. denied, 449 U.S. 833, 101 S. Ct. 104, 66 L. Ed. 2d 39 (1980)). That is the case here. Regardless of how many conspiracies were alleged and proved, there was sufficient evidence to convict Loney of participating in the conspiracy with Jefferson that was alleged in the indictment. Loney therefore cannot show that he suffered substantial prejudice.26 6]

In his last assignment of error, Loney contends the district court erred in refusing to grant his motion for a new trial, in which he argued that his trial was fundamentally unfair because the prosecutor called him a "liar" in his closing argument.27 At trial Loney testified that he stopped the "transactions" with Jefferson in June 1987, when Jefferson called him and told him that the coupons "were no longer good." He testified that at that time he "thought ... that instead of turning all the money over to American Airlines she was possibly keeping some of the money...." Exhibits showed, however, that Loney paid Jefferson thousands of dollars after that time. In his closing argument, the prosecutor drew the jury's attention to this discrepancy and told the jury that "[h]e's not being truthful with you."

Loney made no objection to the prosecutor's statements; nor did he ask to reopen the evidence in an attempt to explain the inconsistency. Rather, in his motion for new trial he submitted an affidavit stating that he continued remitting funds to Jefferson after June 1987 because "he believed certain funds were still due to American Airlines, and had nothing to do with Jefferson."

There is no indication that the affidavit alleged that there was "newly discovered" evidence relevant to Loney's trial.28 Rather, he was in possession of the "evidence" (the explanation of the inconsistency) all along but apparently did not realize its relevancy. In these circumstances, where there is no newly discovered evidence, the denial of a motion for a new trial is not appealable per se; rather, the appeal is taken from the final judgment, and the appellate court examines the ground for error. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986). Given Loney's failure to object to the prosecutor's remarks at trial, we review for plain error.

This court recently noted in United States v. Webb, 950 F.2d 226, 230 (5th Cir.1991), that it is well established that a prosecutor may recite to the jury those inferences and conclusions he wishes them to draw from the evidence so long as those inferences are grounded upon the evidence. The prosecutor in this case drew the jury's attention to the fact that Loney had said one thing but his actions showed another. Far from causing a miscarriage of justice, the comments of the prosecutor were entirely appropriate, given the evidence before the jury. We therefore conclude that this ground for error is without merit.

In sum, we find that Loney's arguments regarding Exhibit # 21, variance, and the prosecutor's remarks are without merit. We also conclude that Loney used interstate wires to further his scheme to defraud American Airlines of its money and property and therefore AFFIRM his substantive wire fraud convictions. Finally, we AFFIRM his conviction for conspiracy, concluding that the United States does not need to be the target of an "offense"-clause conspiracy under section 371.