## Facts

- The United States prosecuted Jackie V. Brown for (1) conspiracy, in violation of 18 U.S.C. § 371, and (2) aiding and abetting fraud charged as mail-fraud-type conduct, in violation of 18 U.S.C. §§ 2 and 1343.
- Evidence at trial showed Brown participated in a scheme involving altered U.S. postal money orders connected to Parchman State Penitentiary in Mississippi.
- Two women corresponded with Richard Sims, an inmate at Parchman.
- Sims told the women his “case worker” would mail them money orders for large amounts and instructed them to send most of the proceeds to Brown.
- The money orders were altered so that low-value instruments appeared to be worth much more (for example, a money order that appeared to be for “$700” had a true value of about $1.00).
- The women cashed or tried to cash the altered money orders and, following Sims’s instructions, sent most of the money to Brown.
- Some altered instruments were not successfully negotiated because authorities intervened, including instruments with large face amounts (including two with $2,000 face amounts).
- A jury found Brown guilty on both counts.
- The district court sentenced Brown to concurrent 15-month prison terms and three years of supervised release on each count, and ordered restitution of $1,092.
- Brown moved to vacate the count-two aiding-and-abetting conviction under Wharton’s Rule; the district court denied the motion, and Brown appealed.

## Issues

1. Whether Wharton’s Rule required vacating Brown’s aiding-and-abetting fraud conviction because Brown was also convicted of conspiracy arising from the same scheme.
2. Whether the Sentencing Guidelines loss calculation properly included the face value of altered money orders that were not cashed because law enforcement stopped the transactions.

## Decision

- The Fifth Circuit affirmed Brown’s convictions and sentence.
- Wharton’s Rule did not bar separate convictions and punishment for conspiracy under § 371 and aiding and abetting fraud under §§ 2 and 1343.
- The district court properly included, as intended loss under the fraud guideline, the face value of altered instruments that were part of the scheme even though they were not successfully cashed due to law-enforcement intervention.

## Legal Principles

- Wharton’s Rule is a limited presumption about legislative intent that applies to a narrow set of offenses where the substantive crime, by definition, requires concerted action by the same parties and where the agreement adds no separate danger beyond the completed offense.
- Wharton’s Rule generally does not apply when the substantive offense can be committed by a single person, or when the charged conspiracy involves more participants than the minimum number needed to commit the substantive offense.
- Conspiracy under 18 U.S.C. § 371 is a separate crime from the substantive offense; absent a clear congressional signal to the contrary, a defendant may be convicted and punished for both.
- Aiding and abetting liability under 18 U.S.C. § 2 is distinct from conspiracy; the same course of conduct can support both a conspiracy conviction and liability for aiding and abetting the substantive offense.
- Under U.S.S.G. § 2F1.1 (as applied at the time), loss may be based on intended loss when intended loss exceeds actual loss.
- Intended loss includes amounts the defendant sought to obtain through the scheme even if the money was not obtained because the attempt was stopped or otherwise failed.

## Conclusion

United States v. Brown affirmed convictions for conspiracy and aiding and abetting fraud arising from an altered postal money-order scheme, holding that Wharton’s Rule did not require vacating the substantive aiding-and-abetting conviction and that the Guidelines loss amount could include the face value of altered money orders that were intercepted or not successfully cashed due to law-enforcement intervention.


United States v. Brown, 7 F.3d 1155 (1993)