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United States v. Petlechkov

United States Court of Appeals, Sixth Circuit

May 1, 2019

United States of America, Plaintiff-Appellee,
v.
Dimitar Petlechkov, Defendant-Appellant.

          Appeal 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 Appellant.

          David Pritchard, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

          Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.

          OPINION

          THAPAR, CIRCUIT JUDGE.

         Proper 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.

         I.

         FedEx 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 him.

         The 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.

         II.

         Petlechkov 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).

         To 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.

         Petlechkov 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.

         Petlechkov's 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 ...


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