UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50162

Plaintiff-Appellee, D.C. No. 8:16-cr-00076- v. JVS-7 JAMES R. MILHEISER, OPINION Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-50173

Plaintiff-Appellee, D.C. No. 8:16-cr-00076- v. JVS-21 FRANCIS FRANK S. SCIMECA, AKA Francis S. Scimeca, AKA Francis Samuel Scimeca, AKA Frank Scimeca, AKA Frank Samuel Scimeca,

Defendant-Appellant. 2 USA V. JAMES MILHEISER

UNITED STATES OF AMERICA, No. 21-50210

Plaintiff-Appellee, D.C. Nos. 8:16-cr-00076- v. JVS-18 8:16-cr-00076- TAMMI L. WILLIAMS, JVS

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-50216

Plaintiff-Appellee, D.C. No. 8:16-cr-00076- v. JVS-14 JONATHAN M. BRIGHTMAN,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-50239

Plaintiff-Appellee, D.C. No. 8:16-cr-00076- v. JVS-16 SHARON SCANDALIATO VIRAG, AKA Sharon Kiefer, AKA Sharon Scandaliato, AKA Sharon Scimeca, USA V. JAMES MILHEISER 3

AKA Sharon Virag,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-50258

Plaintiff-Appellee, D.C. No. 8:16-cr-00076- v. JVS-12 LEAH D. JOHNSON, AKA Leah Johnson, AKA Leah Domitilla Johnson, AKA Leah D. Ortiz, AKA Joeahh Domitilla Viszolay,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted September 13, 2023 Pasadena, California

Filed April 9, 2024

Before: Milan D. Smith, Jr., Michelle T. Friedland, and Eric D. Miller, Circuit Judges.

Opinion by Judge Friedland 4 USA V. JAMES MILHEISER

SUMMARY *

Criminal Law

The panel vacated six defendants’ convictions for mail fraud and/or conspiracy to commit mail fraud arising from the defendants’ sales companies’ tactics in selling printer toner, and remanded. The thrust of the Government’s case was that a sales company representative would call a business, falsely imply that the sales company was the business’s regular supplier of toner, and falsely state that the price of toner had increased. The representative would then state that the business could lock in the old price by purchasing more toner that day. The Government argued, and the jury was instructed, that if the defendants had made a misrepresentation that would be expected to and did cause a business to part with money, that constituted fraud. The defendants argued that this theory of fraud was overbroad because it permitted the jury to convict even though all of the businesses received the toner they ordered at the agreed price. The panel explained that not just any lie that secures a sale constitutes fraud; the lie must instead go to the nature of the bargain. The panel held that the Government’s theory of fraud in this case was overbroad because it did not require the jury to find that the defendants deceived customers about the nature of the bargain. The Governmen