SUBJECT: Prosecution Recommendation in re Assignment of K-Mart Real Estate License
The FBI special agents assigned to this case, Mulder and Sculley, have completed their investigation of certain transactions in the above-stated matter. Their factual summary and the relevant law concerning mail fraud, wire fraud and bank fraud form the basis for my recommendation to prosecute the offending parties.
(This memorandum will not include a discussion of "intangible property," since the property in question, i.e, money, is, in fact, tangible. Likewise, a discussion of "bank fraud" is not applicable here as the victim was not a financial institution and the fraud did not threaten the financial integrity of a federally-controlled or insured bank.)
Garzoni was a lawyer who worked for the K-Mart Corporation in their Troy, Michigan, offices in the closed store group of the Real Estate Department. He was responsible for the Southern Region, which includes closed K-Mart stores in Texas and specifically, store #4447, which these transactions involved. Garzoni has since been terminated by K-Mart Corporation and has refused to speak to the investigators.
It is my opinion that we should not seek to charge Garzoni in this matter. The evidence against him is so weak that, based on the facts currently in our possession, we would not be successful in securing a conviction.
Garzoni's situation is problematic for the government from the onset as an attempt is made to analyze his requisite intent. As you know, implicit in the "scheme to defraud" element is that the defendant had a fraudulent intent. While courts have differed on degree of intent necessary, they often allow intent to be inferred from the evidence. I do not believe, however, that we have the facts necessary to argue the inference in Garzoni's case.
In U.S. v. Walters, (1993), the Court of Appeals, Seventh Circuit, declined to find mail fraud where there was no sch...