## Facts

- Donald Clausen, a dentist, opened a silver futures trading account with Conti-Commodity Services, Inc. (Conti).
- Clausen ordered five silver futures contracts while knowing he lacked funds to satisfy anticipated margin calls.
- After silver prices fell, Clausen incurred a margin deficiency of about $22,500.
- Clausen delivered a $22,500 check to Conti despite insufficient funds, intending to keep trading and hoping to profit from a short-term price increase.
- After delivering the check, Clausen placed another order for five additional silver futures contracts.
- Silver prices fell again, creating an additional margin obligation of about $31,900.
- Clausen later called his broker and stated the $22,500 check would not clear and that he could not meet the second margin call.
- Conti liquidated Clausen’s positions and suffered a loss of approximately $47,883.
- A federal grand jury indicted Clausen on three counts of wire fraud under 18 U.S.C. § 1343, based on three interstate telephone calls made in furtherance of the alleged scheme.
- A jury in the District of Minnesota convicted Clausen on all counts, and the court imposed sentence including restitution.

## Issues

1. Whether the indictment was fatally defective for allegedly charging only the passing of an insufficient-funds check rather than a scheme to defraud under 18 U.S.C. § 1343.
2. Whether the evidence was sufficient for a rational jury to find a scheme to defraud and intent to defraud, rather than mere unsuccessful speculation.
3. Whether the district court abused its discretion by limiting defense counsel’s closing argument concerning the theory that the conduct belonged under state bad-check law, not federal wire-fraud law.
4. Whether the district court abused its discretion in ordering restitution by failing to adequately consider Clausen’s financial condition or the victims’ financial status.

## Decision

- The Eighth Circuit affirmed the convictions and restitution order.
- The indictment adequately alleged a scheme to defraud within the meaning of § 1343 and was not limited to a bare NSF-check theory.
- The evidence, viewed in the light most favorable to the government, was sufficient for a rational jury to find intent to defraud and an executed fraudulent scheme.
- The district court acted within its discretion in controlling the scope of closing argument and did not prevent Clausen from presenting his theory.
- The restitution order was not an abuse of discretion where the court considered Clausen’s financial condition through the presentence report and was not required to assess the victim’s finances.

## Legal Principles

- Wire fraud under 18 U.S.C. § 1343 reaches schemes to defraud even without proof of a specific false representation.
- The presentation of an NSF check, standing alone, may be insufficient to establish fraud, but an NSF check used as part of a broader course of conduct may support a scheme-to-defraud charge.
- Intent to defraud may be inferred from circumstantial evidence, including a defendant’s knowledge that promised payments cannot be made coupled with acts that shift the risk of loss to another party.
- A conviction must be sustained if, viewing the evidence most favorably to the government, any rational trier of fact could find the essential elements beyond a reasonable doubt.
- Trial courts have broad discretion to control closing argument so long as the defense retains a meaningful opportunity to argue its theory.
- In imposing restitution, a sentencing court may rely on information in a presentence report regarding the defendant’s financial condition and need not evaluate the victim’s financial resources when not required by the governing statute.

## Conclusion

The court upheld wire-fraud convictions where Clausen knowingly used an insufficient-funds margin check and continued trading as part of a course of conduct that a jury could find was intended to shift losses to the broker, and it affirmed the trial court’s management of closing argument and its restitution determination.


United States v. Clausen, 792 F.2d 102 (8th Cir. 1986)