Jessica Arong O'Brien v. United States

Petitioner was indicted on one count each of mail and bank fraud, days from the ten-year statute of limitation since selling her real properties in 2007. The indictment duplicitously fused together non-bank and bank transactions, all of which were out-of-statute except for her buyer’s home equity line of credit or HELOC. Buyer alone executed his HELOC HUD-1, while the HUD-1 Petitioner and buyer jointly-executed indicated non-bank lender for buyer’s two loans. Lower courts disregarded the government’s own documentary and testimonial evidence that Petitioner could not have known about her buyer’s HELOC lender. Petitioner’s convictions instead were affirmed under § 1344(2) citing the Loughrin v. U.S., 353 U.S. 351 (2014) holding and U.S. v. Bouchard, 828 F.3d 116 (2d Cir. 2016) dicta, imputing purported industry knowledge to conclude Petitioner knew that lender for buyer’s HELOC was federally-insured. The Questions Presented are:

1. Whether under Loughrin, a real estate seller’s knowledge of her buyer’s federally-insured lender may be imputed to sustain a conviction under § 1344, thereby omitting proof of actual knowledge.

2. Whether bank and mail fraud are continuing offenses pursuant to Toussie v. U.S., 397 U.S. 112 (1970), that allow the government to circumvent stat­ utes of limitations by aggregating non-bank and bank transactions as a “scheme” involving different parties and transactional purposes.

3. Whether mail fraud or bank fraud is duplici­ tous, vague and confusing to a jury when it combines four to five un-related non-bank and bank transactions, all of which are outside of the statute of limitations except one, into a single count.