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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2003 Decided December 9, 2003

No. 02–3113

UNITED STATES OF AMERICA,

APPELLEE

v.

KINLEY W. HOWARD,

APPELLANT

–————

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00079–01)

–————

Brian W. Shaughnessy argued the cause for appellant.

With him on the brief was Harvey J. Volzer.

Susan A. Nellor, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, John R. Fisher, Elizabeth Trosman, and

Linda T. McKinney, Assistant U.S. Attorneys.

Before: RANDOLPH and ROBERTS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
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WILLIAMS, Senior Circuit Judge: Kinley Howard was convicted of two counts of mail fraud and one of wire fraud

arising from his efforts to defraud the heirs to his aunt’s

estate. Though Howard raises several issues on appeal, all

but one can be rejected without a published opinion. The

remaining argument is that the court improperly imposed a

two-level sentence enhancement for Howard’s violation of a

judicial order. On this one point we reverse and remand the

case for resentencing.

* * *

Following the death of his aunt Mildred Powell on July 15,

1996, Kinley Howard sought to become executor of her estate.

Although the probate court initially denied his petition because he was not a descendant of Powell, Howard forged the

signature of his mother (Powell’s sister) and secured appointment as co-executor. Following his appointment, Howard

engaged in mail and wire fraud to transfer funds from

Powell’s holdings in Washington, D.C., to bank accounts he

established in Florida. Howard later withdrew money from

the Florida accounts and transferred it to his personal and

business accounts.

The last act of wire or mail fraud for which Howard was

indicted occurred on April 9, 1997. On August 7, 1997, almost

four months later, the probate judge learned of Howard’s

possible malfeasance and issued an order suspending his

executorship. Despite this order, Howard continued to transfer funds from the Florida accounts to his own accounts

through December 1997. At sentencing, the district court

found that Howard’s offense involved violation of a judicial

order and imposed a two-level enhancement under U.S.S.G.

§ 2F1.1(b)(4) (November 1, 1998), the guidelines vintage selected by the district court as generally most favorable to

Howard. (See Tr. 12/06/02 at 2.) The court observed that

Howard’s continued transfer of funds following the probate

order was ‘‘relevant, on the issue of whether he did, in fact,

have the intent to defraud, which is clearly an element of both
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the wire and mail fraud counts of the indictment.’’ (Tr.

12/06/02 at 29–30.)

The relevant guidelines section called for a two-level increase if

the offense involved TTT a violation of any judicial or

administrative order TTT not addressed elsewhere in the

guidelinesTTTT

U.S.S.G. § 2F1.1(b)(4) (November 1, 1998). Recodified in the

2002 version as § 2B1.1(b)(7)(C), the section now includes the

modifiers ‘‘prior, specific’’ before the phrase ‘‘judicial TTT

order.’’ As it would be hard to say that an offense ‘‘involved

TTT a violation’’ of an order that did not exist, the change

appears not to affect the section’s substance.

Howard argues that the mailings and the wire transfer that

formed the basis of the three counts all occurred before the

probate court’s order. Although we are not sure why the

district court emphasized that the violation of the court order

was relevant to Howard’s intent (it certainly appears to have

been), the court seems implicitly to have ruled that the twolevel bump applies whenever activity constituting any part of

any element of an offense violates a court order.

Neither this nor any other circuit appears to have yet

considered what elements of an offense must occur after a

judicial order for the offense to ‘‘involve’’ a violation. But the

Seventh Circuit in United States v. Barger, 178 F.3d 844 (7th

Cir. 1999), faced a related question—application of the concept of a ‘‘straddle offense’’ to a mail fraud conviction. A

straddle offense is one that began before November 1, 1987—

the date the guidelines went into effect—but continued after

that date. While the guidelines may be applied to such

offenses without violating the ex post facto clause, their

application to offenses completed before their effective date

would risk a violation. Barger’s last mail usage had been in

1986, though his scheme continued past November 1, 1987.

In refusing to find Barger’s crimes to be straddle offenses,

the court invoked statute of limitations principles. ‘‘Just as
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the statute of limitations for mail fraud begins at the time of

the mailing, we find that the crime of mail fraud is completed,

for sentencing purposes, at the time of the mailing. The

actual duration of the scheme is of no import.’’ Id. at 847

(emphasis added). Because a mail fraud violation is a use of

the mails in furtherance of a scheme, it is possible for a

defendant to be guilty of multiple mail fraud violations, each

based on a mailing, in pursuit of a single scheme. Id.

In applying the statute of limitations to mail and wire fraud

the circuits appear uniformly to focus on the actual mailing

and use of the wires. For mail fraud, see United States v.

Eisen, 974 F.2d 246, 263 (2d Cir. 1992); United States v.

United Medical & Surgery Supply Corp., 989 F.2d 1390, 1398

(4th Cir. 1993); United States v. Ashdown, 509 F.2d 793, 797–

98 (5th Cir. 1975); United States v. Crossley, 224 F.3d 847,

859 (6th Cir. 2000); United States v. Dunn, 961 F.2d 648, 650

(7th Cir. 1992); United States v. Pemberton, 121 F.3d 1157,

1163 (8th Cir. 1997). For wire fraud, see United States v.

Tadros, 310 F.3d 999, 1006 (7th Cir. 2002) (citing Barger, 178

F.3d at 847); United States v. Gross, 416 F.2d 1205, 1210 (8th

Cir. 1969) (mail and wire fraud).

In each of these cases, to be sure, the use of the mails or

wires within the period allowed the government to reach the

crime and yet rely on proof of scheme activity in an otherwise

time-barred period. Thus the cases are holdings only for the

sufficiency, not the necessity, of using the mails within the

statutory period. But no court has in any way suggested that

the statute of limitations would be satisfied as long as any one

element of the offense, e.g., part of the scheme, fell within the

period. Requiring that the order-violating conduct consist of

the mailing or wiring acknowledges these acts’ role as the

source of federal jurisdiction. See, e.g., United States v.

Reid, 533 F.2d 1255, 1260 (D.C. Cir. 1976). It also seems

likely in the present context to be comparatively clear and

thus to contribute to sentencing uniformity.

Because Howard’s last use of the mails or wires occurred

on April 9, 1997, both offenses were completed by that date.

The order from the probate judge was not issued until August
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7, 1997, so neither the mail nor wire fraud offenses can be

said to have violated the order. Accordingly, though affirming Howard’s conviction in all other respects, we reverse the

two-level enhancement under § 2F1.1(b)(4) and remand the

case for resentencing.

So ordered.