from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:17-cr-20344-1-Jon
Phipps McCalla, District Judge.
Michael J. Stengel, STENGEL LAW FIRM, Memphis, Tennessee, for
Pritchard, UNITED STATES ATTORNEY'S OFFICE, Memphis,
Tennessee, for Appellee.
Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.
THAPAR, CIRCUIT JUDGE.
venue in a criminal case is an "essential part of a
free and good government." The Federal Farmer, in 2
The Complete Anti-Federalist 230 (Herbert J. Storing
ed. 1981). The government failed to meet its constitutional
obligation to prove venue for most of the charges it brought
against Dimitar Petlechkov. Accordingly, we affirm in part,
reverse in part, and remand.
provides shipping discounts to high-volume customers. In
order to obtain such a discount, Dimitar Petlechkov lied to
FedEx and claimed he was a vendor for a high-volume shipper.
He used those discounted rates to offer shipping services to
third parties, pocketing the profit margin between what he
charged the third parties and what he paid FedEx. He shipped
nearly 30, 000 packages this way until FedEx finally caught
government charged Petlechkov with 20 counts of mail fraud.
See 18 U.S.C. § 1341. A jury convicted him on
each count. The district court sentenced Petlechkov to 37
months in prison and ordered him to pay approximately $800,
000 in restitution. He now appeals his convictions, sentence,
and restitution award.
challenges the sufficiency of the evidence underlying his
mail fraud convictions. On appeal, "the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
convict Petlechkov of mail fraud, the government had to prove
that he devised a scheme to defraud, used the mails in
furtherance of that scheme, and intended to deprive the
victim of money or property. 18 U.S.C. § 1341;
United States v. Warshak, 631 F.3d 266, 310 (6th
Cir. 2010). A fraudulent scheme must include a
material misrepresentation, which is a
misrepresentation that could influence the decision of a
"person of ordinary prudence and comprehension."
United States v. Jamieson, 427 F.3d 394, 415-16 (6th
Cir. 2005). Materiality is the only element Petlechkov
disputes on appeal.
concedes that he made a misrepresentation but contends that
it was not material. His misrepresentation was simple: he
called FedEx's account manager for General Dynamics-one
of FedEx's larger clients-and claimed he was a General
Dynamics vendor entitled to its discounted shipping rate.
Soon afterwards, FedEx linked Petlechkov's account to
General Dynamics, and he was able to ship packages at its
rate. All it took was a single phone call. Petlechkov makes
two arguments for why his phone call could not have
influenced a "person of ordinary prudence and
comprehension." Id. at 415-16. First, he claims
vendors were not actually entitled to discounts under General
Dynamics's contract with FedEx. And this leads to his
second argument: that federal law prohibits the unwritten
discounts he received. Thus, according to Petlechkov, the
FedEx employees who signed off on his discount request were
not ordinary, prudent people-his bald assertion that he was a
General Dynamics vendor should not have convinced FedEx to
give him a discount.
arguments fail. First, whatever discounts the General
Dynamics agreement required FedEx to provide,
nothing in the record suggests that the agreement
barred FedEx from being more generous than required.
And indeed, FedEx's standard "operating
procedure" was to extend a customer's discounts to
its vendors. R. 75, Pg. ID 384-85, 397-98. Because FedEx had
such a policy, an ordinary, prudent employee would follow it.
Thus, Petlechkov's false statement was capable of
influencing FedEx's decision. And indeed, it
actually influenced FedEx's decision-FedEx gave
him a discount that lasted for several years. The fact that
Petlechkov's false ...