State v. Bradshaw

1 Although there were fourteen victims, Mr. Bradshaw was
charged with only eleven counts because three of the fraudulent
acts involved couples.
2006 UT 87
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20040975
Plaintiff and Petitioner,
v.
F I L E D
Brooks Bradshaw,
Defendant and Respondent. 	December 29, 2006
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Third District, Murray Dep’t
The Honorable Joseph C. Fratto, Jr.
No. 001200833
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Charlene Barlow,
Christine F. Soltis, Asst. Att’ys Gen., Salt Lake
City, for plaintiff
Joan C. Watt, Robert K. Heineman, Salt Lake City, for
defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	Representing himself as an owner of a mortgage company,
Brooks Bradshaw assured his fourteen victims that he could help
them refinance their current mortgages. 	After collecting fees
from his victims, Mr. Bradshaw disappeared.
¶2 	Mr. Bradshaw was charged with eleven counts of
communications fraud. 1 	The district court concluded that
Mr. Bradshaw’s defraudation of his fourteen victims was part of a
single “scheme or artifice.” 	As such, Mr. Bradshaw was exposed

2 The district court also bound over Mr. Bradshaw on one
count of racketeering in violation of Utah Code section 76-10-
1603. 	That charge does not concern us here.
No. 20040975 	2
to conviction for eleven second degree felonies under Utah’s
communications fraud statute, Utah Code Ann. § 76-10-1801 (2003),
despite the fact that the amount of money Mr. Bradshaw took from
each individual or couple would have made Mr. Bradshaw culpable
for only a class A misdemeanor offense. 	The divided court of
appeals rejected the district court’s interpretation. 	We
conclude that the district court’s interpretation was correct and
reverse the court of appeals.
BACKGROUND
¶3 	Mr. Bradshaw waived his right to a preliminary hearing.
Instead, Mr. Bradshaw and the State stipulated to the facts and
asked the district court to determine whether those facts
supported a bindover on eleven counts of second degree felony
communications fraud. 	The district court concluded that they
did. 2 	According to the stipulated facts, over the course of
approximately three months, Mr. Bradshaw targeted and then
defrauded fourteen persons of monies ranging from $400 to $600,
ultimately accumulating a total of $5,400. 	In each instance,
Mr. Bradshaw targeted persons who were trying to refinance a
mortgage on a residence or were trying to acquire a loan to avoid
foreclosure. 	Mr. Bradshaw met with his victims in their homes.
He falsely represented himself as either an owner or a co-owner
of a mortgage company and assured his victims that he would
refinance their current mortgage for a fee. 	He told them that
the fees would be used to compensate him for his services and to
obtain appraisals, title searches, and credit reports.
Mr. Bradshaw never performed any of the promised services, and
his victims were never able to locate him after he departed with
their money.
¶4 	At times, Mr. Bradshaw’s method of operation varied
among his victims. 	For example, on one occasion, Mr. Bradshaw
brought an associate who claimed to be an appraiser to meet with
a victim. 	On another occasion, he offered to purchase a victim’s
store. 	He also offered to help acquire financing for a “real
estate project [a victim] was attempting to complete.”
¶5 	The State charged Mr. Bradshaw with eleven counts of
second degree felony communications fraud because it considered
Mr. Bradshaw’s eleven acts of guile to be part of a single
“scheme.” 	The State insisted that if Mr. Bradshaw defrauded all
fourteen victims through a single scheme, two provisions of the

3 In Mr. Bradshaw’s brief, he contends that subsections (2)
and (5) of the Utah communications fraud statute must be read in
the alternative or be declared unconstitutional. 	On appeal
below, the court of appeals rejected this argument. 	Mr. Bradshaw
failed to raise this issue on a cross-petition for certiorari,
and we did not grant certiorari on this issue. 	It is, therefore,
improperly before us, and we decline to consider it. 	See State
v. South, 924 P.2d 354, 355-56 (Utah 1996).
3 	No. 20040975
communications fraud statute came into play: 	one that designated
each communication made for the purpose of executing or
concealing the scheme as a separate offense and another that
measured the degree of each separate offense by totaling the
amount of money obtained from the “scheme or artifice.” 	Utah
Code Ann. § 76-10-1801(2), (5) (2003). 	Because the State
considered Mr. Bradshaw’s eleven fraudulent acts to be part of a
single “scheme or artifice,” it accumulated the amounts
Mr. Bradshaw took from his victims--a total of $5,400--and used
that amount to determine that the degree of the eleven offenses
was second degree felonies.
¶6 	Mr. Bradshaw moved to quash his bindover on the felony
communications fraud charges. 	He contended that he had defrauded
his fourteen victims through eleven separate, individual schemes.
Therefore, he argued, it would be improper to aggregate the
amounts taken from the victims for the purpose of fixing the
degree of the offense and then disaggregate the fraudulent acts
so that he could be charged with eleven more serious offenses.
Mr. Bradshaw asserted that, under a proper reading of the
communications fraud statute, he should face, at most, eleven
class A misdemeanors or one second degree felony.
¶7 	The district court denied Mr. Bradshaw’s motion, and
Mr. Bradshaw entered into a plea agreement. 	He pled guilty to
four counts of attempted communications fraud--third degree
felonies under section 76-4-102(3)--and reserved the right to
appeal the district court’s denial of his motion. 	The district
court accepted the pleas, and the remaining charges were dropped.
Mr. Bradshaw then appealed the district court’s order on his
motion to quash, and the court of appeals reversed the district
court. 	The State sought certiorari review, which we granted to
consider whether the court of appeals properly interpreted the
communications fraud statute when it held that Mr. Bradshaw’s
fraudulent activities were not separate parts of a single
scheme. 3

No. 20040975 	4
ANALYSIS
¶8 	The issue at hand calls upon us to interpret Utah’s
communications fraud statute and apply it to accepted facts. 	We
proceed without deferring to the interpretation of the statute
adopted by the court of appeals’ majority. 	John Holmes Constr.,
Inc. v. R.A. McKell Excavating, Inc., 2005 UT 83, ¶ 6, 131 P.3d
199. 	We hold that conduct which qualifies as a “scheme or
artifice” under the communications fraud statute may involve
multiple acts, actors, and victims. 	The acts, however, must
share a sufficient number of common elements to permit a
reasonable person to conclude that they were part of a single
criminal design.
¶9 	As noted above, the question of whether multiple
fraudulent acts are part of a single scheme or are, instead,
separate criminal episodes is a matter of great importance in the
application of the communications fraud statute. 	The
communications fraud statute provides that each communication
made in furtherance of a scheme to defraud constitutes a separate
offense. 	Utah Code Ann. § 76-10-1801(5) (2003). 	The statute
also directs that the severity of each separate offense be
determined by the aggregate of the monies obtained or sought to
be obtained by the “scheme or artifice.” 	Id. § 76-10-1801(2).
The statute does not, however, offer further guidance on how to
identify a “scheme or artifice.”
¶10 	The court of appeals’ majority concluded that the term
“scheme or artifice” as used in the communications fraud statute
was ambiguous. 	It justified this conclusion by drawing on United
States Supreme Court commentary on the “‘highly elastic’” nature
of the term. 	State v. Bradshaw, 2004 UT App 298, ¶ 17, 99 P.3d
359 (Thorne, J., dissenting) (quoting H.J. Inc. v. Nw. Bell Tel.
Co., 492 U.S. 229, 241 n.3 (1989)). 	We have no quarrel with this
characterization of “scheme” or with the Supreme Court’s
observation that the term is “‘hardly self-defining.’” 	Id.
(quoting H.J. Inc., 492 U.S. at 241 n.3). 	We are not persuaded,
however, that definitional elasticity is synonymous with
ambiguity. 	Nor are we convinced, even in the absence of
definitional precision, that a court is free to immediately apply
more generalized principles of statutory interpretation--like the
rule of lenity or relevant public policy considerations--without
first exploring whether a reliable definition of the term may be
ascertained from authoritative extra-textual sources. 	While
public policy considerations and the rule of lenity impose
limitations on definitions, they illuminate definition
indirectly. 	Our first inquiry should be into sources of guidance
on the actual meaning of the term itself.

5 	No. 20040975
¶11 	The term “scheme or artifice” is an established term of
art that has been repeatedly defined in state and federal cases
throughout the country. 	Indeed, the Utah communications fraud
statute borrowed the term from the federal mail and wire fraud
statutes. 	Floor Debate, 46th Leg., Gen. Sess. (Utah Feb. 27,
1985) (Senate recording no. 129) (statements of U.S. Attorney for
Utah Brent Ward) (“The language of the bill is based on the
federal mail and wire fraud statutes. 	These statutes have
withstood the test of almost 100 years [of] experience.”). 	Other
courts’ interpretations of that term, therefore, are instructive
and aid us in our efforts to interpret the Utah statute.
¶12 	We find that the term scheme “refers to the overall
design to defraud one or many by means of a common plan or
technique.” 	United States v. Massey, 48 F.3d 1560, 1566 (10th
Cir. 1995). 	A single scheme can include a series of separate but
similar fraudulent acts, as long as the separate acts are linked
by a common, continuing criminal design.
¶13 	The court of appeals held that a single scheme could
not include criminal activity where victims are deceived “at
different times, in different places, by different stories, and
through different methods.” 	Bradshaw, 2004 UT App 298, ¶ 20.
While this interpretation would treat the defrauding of multiple
victims as a single scheme if the fraudulent misrepresentation or
omission were made at one time and in one place to a single group
of people, id. ¶ 20 n.7, we nevertheless find too limiting the
court of appeals’ emphasis on commonality of time and place. 	A
series of fraudulent acts aimed at obtaining one criminal
objective clearly constitutes a single scheme, but so does a
series of similar fraudulent acts separated by time and place but
linked by a common, continuing criminal design. 	See State v.
Fleming, 730 P.2d 1178, 1180 (Mont. 1987) (defining, by statute,
a “‘common scheme’ . . . as a series of acts or omissions
motivated by a purpose to accomplish a single criminal objective
or by a common purpose or plan which results in the repeated
commission of the same offense or affects the same person or the
same persons or the property thereof” (emphasis in original)
(citations and internal quotation marks omitted)). 	We find this
statement by the Fifth Circuit helpful:
[T]he defrauding of different people over an
extended period of time, using different
means and representations, may constitute but
one scheme. . . . 	[I]t does not make any
difference that the various deceptions were
practiced at different places. 	Nor is it

No. 20040975 	6
significant that the whole scheme was not
planned out in advance. 	A continuing
“intention to devise it,” . . . or an
imperfectly conceived plan to defraud which
becomes more and more sophisticated and
grandiose as the plan progresses and the
assets of the more gullible victims are
exhausted, may well constitute a single
scheme.
Owens v. United States, 221 F.2d 351, 354 (5th Cir. 1955)
(quoting Weiss v. United States, 122 F.2d 675, 680 (5th Cir.
1941)). 	Thus, the fact that schemers may alter slightly their
methodology or effect the fraud on various victims at different
times is not conclusive evidence that the separate acts of fraud
are separate schemes. 	See United States v. Pharis, 298 F.3d 228,
234 (3d Cir. 2002) (Cowen, J., dissenting) (“By itself, changing
the method used to commit a fraud does not inaugurate a new
fraudulent scheme.”). 	The execution of a plan may result in
infinite operational differences, but so long as the conduct at
the operational level can reasonably be considered part of the
common plan, it does not constitute a separate, independent
scheme.
¶14 	A “scheme or artifice” connotes calculation or
planning. 	Forming a series of deceitful acts into a common
scheme requires forethought. 	A scheme cannot be executed on
impulse. 	The incorporation of forethought into the definition of
a scheme means that the presence of several identical criminal
acts would be insufficient to establish the existence of a scheme
without evidence of planning, foresight, or coordination. 	Thus,
a series of identical criminal acts may not qualify as the
product of a single “scheme or artifice” if each act is
independently impulsive. 	This would be true irrespective of
whether the acts were committed at about the same time, in the
same place, involved similar conduct, and touched victims who met
a common profile. 	In this way, the existence and nature of the
forethought that precedes the criminal conduct has much to do
with whether that conduct is part of a scheme. 	The proper focus,
then, is on the level of generality of the plan behind the
criminal act, which is what sets schemes apart from unrelated
criminal conduct.
¶15 	By directing our attention to the criminal plan’s level
of generality for the purpose of determining the existence of a
“scheme or artifice,” we do not intend to disagree with the Fifth
Circuit’s view that a single scheme may incorporate both an
incompletely formulated plan and later deceptions whose evolution

4 This case outlines factors for distinguishing single
conspiracies from multiple conspiracies and notes the
similarities between evaluating the characteristics of
conspiracies and schemes. 	See Maker, 751 F.2d at 625 n.35
(explaining that “the factors that determine whether a single
conspiracy is present are identical to those that determine
whether a single scheme is present,” especially when the scheme
involves multiple parties).
7 	No. 20040975
may be traced to a primordial fraudulent plan. 	Nor do we intend
to limit the consideration of other factors that may be relevant
to the finding of a common scheme. 	To this end, we find that
(1) similarity of method, United States v. Maker, 751 F.2d 614,
625 (3d Cir. 1984); 4 (2) similarity of result, id.; (3) frequency
and duration of the fraudulent acts, United States v. Zemek, 634
F.2d 1159, 1168 (9th Cir. 1980); (4) commonality of time and
goals, id.; and (5) commonality of victim profiles are all
factors that courts may consider when determining whether a
series of fraudulent acts are part of a single “scheme or
artifice.” 	Evidence of common operational techniques such as
these would provide clear evidence that a defendant was acting
within the designs of a calculated plan. 	By contrast, a common
scheme would not be present where the evidence demonstrates that
the common features of the conduct are superficial and that the
separate acts of fraud were impulsive and not premeditated.
¶16 	In this case, Mr. Bradshaw’s forethought led him to
pursue individuals who shared a common need--or, more to the
point, a common vulnerability--for real estate financing. 	And he
deployed all of his operational deceptions to advance his real
estate financing ruse. 	Specifically, on eleven different
occasions over the course of approximately three months,
Mr. Bradshaw targeted persons who were trying to refinance their
mortgages or were in the process of foreclosure. 	He approached
each victim separately and falsely represented himself as either
an owner or a co-owner of a mortgage company. 	Claiming that he
would refinance their current mortgages for a fee, he collected
amounts ranging from $400 to $600 from each victim. 	Mr. Bradshaw
told each of his victims that the funds were to be used to
compensate him for his time and to obtain appraisals, title
searches, and credit reports. 	Instead of performing the promised
services, Mr. Bradshaw kept all of the money for himself and
absconded from his victims. 	This pattern of behavior, repeated
eleven times over the course of approximately three months,
manifests the existence of a plan and, therefore, fits
comfortably within our definition of a single “scheme or
artifice.” 	Mr. Bradshaw committed a series of similar fraudulent

No. 20040975 	8
acts that were linked by a common method and common results and,
thus, constituted a common, continuing criminal design.
CONCLUSION
¶17 	In sum, we find that a series of separate fraudulent
acts may constitute a single “scheme or artifice” under the Utah
communications fraud statute, Utah Code Ann. § 76-10-1801 (2003),
when the separate acts are linked by a common, continuing
criminal design, thus evidencing the existence of a predetermined
plan. 	Because Mr. Bradshaw employed a common means to reach a
common result, we find that his separate fraudulent activities
constitute a single “scheme or artifice.” 	Consequently, we
overturn the court of appeals’ ruling and affirm the district
court’s decision. 	Mr. Bradshaw’s original conviction stands.
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¶18 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.