FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30024 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00543-RSM

MATTHEW D. JONES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

December 6, 2006—Seattle, Washington

Filed January 10, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable William W Schwarzer, Senior District Court Judge for

the Northern District of California, sitting by designation. 

227
COUNSEL

Sheryl Gordon McCloud, Law Office of Sheryl Gordon

McCloud, Seattle, Washington, for the defendant-appellant. 

Katheryn Kim Frierson, Assistant United States Attorney,

Seattle, Washington, for the plaintiff-appellee.

UNITED STATES v. JONES 229
OPINION

B. FLETCHER, Circuit Judge:

I. FACTS

Matthew Jones appeals the denial of his motion to withdraw his plea. We affirm. On June 16, 2005, Jones pled guilty

to one count of wire fraud, in violation of 18 U.S.C. § 1343.

The plea agreement included a set of stipulated facts upon

which the guilty plea was predicated. In particular, the plea

agreement established that Jones had learned at some point in

2000 of an investment opportunity known as the “Miracle Car

Deal.” Other participants in the Miracle Car Deal informed

Jones that a wealthy car collector had recently died, leaving

a fleet of luxury cars. As part of an attempt to liquidate the

estate, the luxury cars were being sold off at cut rate prices in

order to avoid tax consequences. In reality, neither the cars,

nor the estate, existed. 

Before learning of the Miracle Car Deal’s fraudulent

nature, Jones began to solicit other investors. Jones informed

the investors that he would collect their money for safekeeping and that none of the funds would be turned over to

the estate until the cars were delivered. Between May 2001

and March 2002, Jones successfully solicited forty-five different investors, who entrusted him with approximately $1.3 million. Contrary to his representations, Jones spent this money

on himself, not on acquiring Miracle Cars. His expenditures

included the purchase of property in the San Juan Islands and

payments for staff, consultants, and other services related to

his personal business ventures. 

In February 2002, Jones first learned that the Miracle Car

Deal perpetrators were under federal investigation, though he

did not disclose this information to his investors.1 Five

1

Jones also continued to solicit new investors for another month after

learning of the investigation. 

230 UNITED STATES v. JONES
months later, in July 2002, the original Miracle Car Deal promoters were indicted in federal court. After discovering the

fraud, Jones’s investors called him requesting refunds. Rather

than returning their money, Jones informed them that the government had seized the off-shore account in which he had

been keeping the funds.2

The grand jury returned a Superseding Indictment against

Jones on March 2, 2005, charging him with one count of wire

fraud, in violation of 18 U.S.C. § 1343, and three counts of

money laundering, in violation of 18 U.S.C. § 1957. In

exchange for his guilty plea, the government dropped the

three money laundering counts and agreed to recommend a

sentence that took Jones’s acceptance of responsibility into

consideration. The change of plea hearing was held on June

16, 2005, before a magistrate judge. At the hearing, the court

engaged in a colloquy with Jones to ensure that the plea was

voluntary, knowing, and intelligent, and to determine whether

there was a factual basis for the plea. The U.S. Attorney

informed Jones that the offense of wire fraud required that the

following elements be proven: 

First, the Defendant devised a material scheme and

artifice to defraud or to obtain money and property

by means of material false and fraudulent pretenses,

representations and promises, knowing that the pretenses, representations and promises were false. 

Second, that the Defendant acted with the intent to

defraud. 

And, third, that the Defendant transmitted or caused

to be transmitted by means of wire, radio or television communication in interstate or foreign commerce any writings, signs, signals, pictures or sounds

2This is the only misrepresentation Jones admitted in the plea agreement. 

UNITED STATES v. JONES 231
for the purpose of executing such a scheme and artifice. 

(Tr. of Change of Plea Hr’g, Dec. 8, 2005, at 6-7). 

The U.S. Attorney then proceeded to summarize the agreed

statement of facts detailed in the plea agreement. After this

recitation, the magistrate judge asked defendant whether he

agreed with the summary. Defense counsel responded, and the

government agreed, that “when [Jones] first became aware of

and involved in the Miracle Car Deal, he did not know there

was anything fraudulent about it.” Id. at 11. Defense counsel

then added, 

It’s our understanding that, and our belief, that in

looking at the statute that his criminal guilt is that

after he had received this very significant amount of

money, that he disposed of it in a way that was

inconsistent with applying it on car purchases and

then he made false representations to those people

that had given him the money as to what had happened. He told them that the government had seized

it. That was clearly a misrepresentation. So stated

simply, we believe he acquired the money in good

faith, but he disposed of it unlawfully and used the

wires to misrepresent to the owners of the funds

what had happened to the money. 

Id. at 11-12. The district court then noted that counsel’s statements were “completely consistent with the facts as set forth.”

Id. at 12. Jones also agreed with his attorney’s assertions. 

At the end of the colloquy, Jones formally entered a plea

of guilty to one count of wire fraud in violation of 18 U.S.C.

§ 1343. The magistrate judge found that the plea was knowing, intelligent, and voluntary, and that the agreed-upon facts

provided an independent basis for the plea. The magistrate

judge then recommended that the district court accept the

232 UNITED STATES v. JONES
plea, and on July 5, 2005, the district court adopted the magistrate judge’s recommendation. 

On December 1, 2005, Jones requested a third continuance

of his sentencing date, then set for December 9, expressing a

desire to consult with his fourth successive new counsel about

a possible withdrawal of his plea. The district court denied the

request for a continuance. In response, Jones asked to withdraw his guilty plea, claiming that he discovered only after

the plea was entered that his admitted conduct did not meet

the elements of wire fraud. Because he denied making any

false representation prior to receiving the victims’ money,

Jones argued that he had not obtained any money or property

by means of material false and fraudulent pretenses, representations and promises. 

A hearing on the motion to withdraw was scheduled for

January 6, 2006. Jones filed a supplemental memorandum one

week before the hearing, noting that he “ha[d] not asked this

Court to strike his plea of guilty, but only to grant him leave

to withdraw his plea . . . . He has . . . not made a firm decision

to withdraw his plea.” (Def. Reply to Gov’t Supp. Resp. to

Def. Motion to Withdraw Plea, Dec. 29, 2005, at 6 n.4). Jones

also repeated his request for a continuance. 

At the hearing, the district court denied Jones’s request for

a continuance, noting that the court would not countenance

further delay. The district court also denied Jones’s motion to

withdraw his plea, concluding that “the facts as admitted in

the plea colloquy do support a finding of guilt,” and that

defendant’s motion “appears to be simply a change of heart

and does not constitute a fair and just reason to grant a withdrawal.” (Tr. of Sentencing Hr’g, Feb. 14, 2006, at 16.). The

court added that it thought the motion was “part of a well

established pattern and behavior designed to simply continue

or delay resolution of this case.” Id. at 16-17. 

UNITED STATES v. JONES 233
II. DISCUSSION

Jones argues that his acts do not fall within the ambit of

§ 1343 and that the district court abused its discretion in denying his motion to withdraw. We reject both contentions and

affirm. 

A. The Scope of 18 U.S.C. § 1343

[1] 18 U.S.C. § 1343 criminalizes the act of wire fraud. The

statute provides, in relevant part, 

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses, representations, or promises, transmits or

causes to be transmitted by means of wire, radio, or

television communication in interstate or foreign

commerce, any writings, signs, signals, pictures, or

sounds for the purpose of executing such scheme or

artifice, shall be fined under this title or imprisoned

not more than 20 years, or both. 

18 U.S.C. § 1343 (2002). The Supreme Court has interpreted

§ 1343 broadly and twice held that individuals who retain or

misappropriate the money or property of others, regardless of

how they acquired it, fall within the purview of mail or wire

fraud. 

In Carpenter v. United States, David Carpenter was

accused of aiding and abetting K. Foster Winans in committing wire fraud. 484 U.S. 19 (1987). Winans was employed as

a reporter for the Wall Street Journal. He wrote a daily column, “Heard on the Street,” that provided positive or negative

information on various stocks. Although Winans was not

privy to confidential information, his column was wellrespected and the district court found that it affected the prices

of stocks it discussed. Id. at 22-23. Official policy at the Jour234 UNITED STATES v. JONES
nal was that prior to publication, an article’s content was confidential information owned by the newspaper. In spite of this

rule, Winans began to leak information from his article, prior

to publication, to friends who would buy or sell stocks based

on the likely impact of the article on stock prices. Eventually,

Winans was convicted of mail and wire fraud, among other

things, and Carpenter was convicted of aiding and abetting in

the commission of securities fraud, and mail and wire fraud.

United States v. Carpenter, 791 F.2d 1024, 1025 (2d Cir.

1986). Carpenter appealed his conviction, arguing, in part,

that Winans’s behavior did not amount to fraud, as proscribed

by the mail fraud statute. 

[2] The Court rejected his argument, stating that “[s]ections

1341 and 1343 reach any scheme to deprive another of money

or property by means of false or fraudulent pretenses, representations, or promises.”

3 Carpenter, 484 U.S. at 27 (emphasis added). Winans’s scheme, in which he wrongfully retained

and disseminated information owned by the Journal, fell

within this broad definition. Even more harmful to Jones’s

case, the Court added that “[t]he concept of ‘fraud’ includes

the act of embezzlement, which is the fraudulent appropriation to one’s own use of the money or goods entrusted to

one’s care by another.” Id. (citing Grin v. Shine, 187 U.S.

181, 189 (1902)) (quotations omitted). 

The Court upheld the wire fraud conviction of another

defendant accused of wrongfully retaining money or property

in Pasquantino v. United States, 544 U.S. 349 (2005). In

Pasquantino, petitioners were involved in a scheme to smuggle large quantities of liquor into Canada, thereby avoiding

the hefty excise taxes imposed on imports. As with Jones’s

3We also have construed fraud broadly in the context of the mail fraud

statute. For instance, in United States v. Bohonus, the court explicitly

referred to the “broad interpretation of ‘fraud’ ” and noted, “[t]he fraudulent nature of the ‘scheme or artifice to defraud’ is measured by a nontechnical standard.” 628 F.2d 1167, 1171 (9th Cir. 1980). 

UNITED STATES v. JONES 235
scheme, petitioners did not fraudulently take money from the

Canadian government; they fraudulently deprived the Canadian government of money to which it was entitled. Id. at 356.

In deciding that this activity was, in fact, wire fraud, the Court

noted that “fraud at common law included a scheme to

deprive a victim of his entitlement to money. For instance, a

debtor who concealed his assets when settling debts with his

creditors thereby committed common-law fraud.” Id. 

[3] Given this broad understanding of “fraud,” Jones’s

argument that he did not fraudulently obtain money within the

meaning of § 1343 lacks merit. Jones received $1.3 million

from investors, money that he was supposed to keep safe and

use only for the purchase of automobiles. Instead, he fraudulently appropriated the money, lying to investors about its disposition in order to avoid returning it to its rightful owners.

Although, per the plea agreement, Jones did not possess a

fraudulent intent when he received the money, his fraudulent

appropriation of the funds still satisfies the elements of

§ 1343. 

B. The Validity of Appellant’s Plea

[4] A plea agreement must be knowing and voluntary,

which requires that “the defendant possess[ ] an understanding of the law in relation to the facts.” McCarthy v. United

States, 394 U.S. 459, 466 (1969). In addition, Federal Rule of

Criminal Procedure 11 requires judges to determine that a

plea has a factual basis. Fed. R. Crim. P. 11. To satisfy this

requirement, “[t]he judge must determine ‘that the conduct

which the defendant admits constitutes the offense charged in

the indictment or information or an offense included therein

to which the defendant has pleaded guilty.’ ” McCarthy, 394

U.S. at 467 (citation omitted). Here, Jones argues that his plea

is invalid because he did not understand that the facts to

which he stipulated in his plea agreement failed to qualify as

wire fraud. Because Jones’s argument is based entirely on the

same misapprehension of the law discussed above, the argument lacks merit. 

236 UNITED STATES v. JONES
C. Waiver of Plea

We review the district court’s denial of Jones’s motion to

withdraw his plea for abuse of discretion. United States v.

Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). A court

abuses its discretion when it rests its decision on an inaccurate

view of the law. United States v. Garcia, 401 F.3d 1008, 1011

(9th Cir. 2005). 

[5] This court has made clear that “[a] defendant may withdraw a guilty plea after a district court accepts the plea but

before sentencing if ‘the defendant can show a fair and just

reason for requesting the withdrawal.’ ” United States v.

Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting

Fed. R. Crim. P. 11(d)(2)(B)). The burden of demonstrating

such a fair and just reason rests with defendant; however, the

standard is applied liberally. See, e.g., United States v. Davis,

428 F.3d 802, 805 (9th Cir. 2005); Garcia, 401 F.3d at 1011;

Ortega-Ascanio, 376 F.3d at 883. “Fair and just reasons for

withdrawal include inadequate Rule 11 plea colloquies, newly

discovered evidence, intervening circumstances, or any other

reason for withdrawing the plea that did not exist when the

defendant entered his plea.” Ortega-Ascanio, 376 F.3d at 883.

[6] The sole reason Jones offered for withdrawal was that

the magistrate judge failed to ensure that his plea included the

necessary factual basis, thereby rendering the Rule 11 plea

colloquy inadequate. As discussed above, this argument lacks

merit. Although the standard for allowing withdrawal of a

plea is applied liberally, Jones is still required to show some

“fair and just” reason for withdrawing his plea. Here, he

offered nothing more than his own inaccurate interpretation of

the law. Without more, we cannot say that the district court

abused its discretion in denying his motion to withdraw his

plea. 

AFFIRMED.

UNITED STATES v. JONES 237