Creditor’s Right to Repayment and Escrow Possession Are “Property” Under the Wire-Fraud Statute; Internet Use Alone Is Not Interstate: United States v. Baker (10th Cir. 2025)

Introduction

In a published decision, the Tenth Circuit addressed several important criminal-law questions arising from a family dispute that spilled into a real-estate transaction and a federal prosecution. Matthew Ambrose Baker owed his brother Shane $445,000. After arranging a lucrative assignment fee through a company called Cap Fund 783, LLC, and with proceeds held by Old Republic National Title Company in escrow, Matthew tried to divert the money to himself by lying to the escrow officer and altering Utah business-entity records online to portray himself as the LLC’s manager. A jury convicted him of two counts of wire fraud (one for a phone call to the escrow agent; one for the online alterations). The district court, sitting as factfinder, also convicted him of criminal contempt and being a felon in possession of ammunition.

The appeal presented four core issues:

Whether the “property” requirement for wire fraud is satisfied by (a) a private creditor’s right to repayment of a debt and (b) an escrow agent’s interests in funds it holds;
Whether the government proved the interstate element of §1343 for an Internet-based transmission;
Whether the district court erred by not sua sponte admitting a state-court interpleader judgment; and
Whether criminal contempt under 18 U.S.C. §401 must be initiated by the court (as opposed to a grand jury) and whether 18 U.S.C. §922(g)(1) violates the Second Amendment as applied to a nonviolent felon.

Judge Hartz authored the majority opinion. Judge Phillips concurred in part and dissented in part, disagreeing with the affirmation of one wire-fraud count on what he viewed as a new theory not presented to the jury and warning against an expansive reading of “property” under §1343.

Summary of the Opinion

Property under §1343 includes a creditor’s right to repayment of a debt: A scheme to frustrate a creditor’s collection efforts can be a scheme to obtain “money or property.” The court relied on Pasquantino’s recognition that the right to be paid money is a “species of property.”
Escrow agents have cognizable property interests: Applying Shaw’s logic, the court held Old Republic had property interests in the escrowed funds—both collateral benefits from banking arrangements and a possessory, bailee-like right to hold the funds against all but the contracting parties—making it a proper victim of wire fraud.
Internet use alone is insufficient to prove interstate transmission under §1343: Reaffirming Kieffer and Schaefer, the court reversed the wire-fraud conviction tied to the website alteration because the government failed to show the communication actually crossed state lines.
No sua sponte duty to admit evidence: The district court did not plainly err by not introducing on its own a state interpleader judgment; the argument was unpreserved, and the evidence was at best marginally relevant and potentially confusing.
Criminal contempt may be initiated by grand jury: Section 401 confers the court’s power to punish, not to prosecute; United States attorneys are statutorily obligated to prosecute “offenses against the United States,” and indictment is a permissible method for initiating contempt.
Second Amendment challenge rejected: Consistent with circuit precedent (Vincent v. Bondi), the panel upheld §922(g)(1) as applied to a nonviolent felon.
Disposition: Convictions on wire fraud Count I (phone call), criminal contempt, and felon-in-possession affirmed; wire fraud Count II (Internet alteration) reversed for insufficient proof of interstate transmission; case remanded for resentencing.

Analysis

Precedents Cited and Their Influence

Pasquantino v. United States, 544 U.S. 349 (2005): The Supreme Court held that a sovereign’s right to collect taxes is “property” and that a scheme to deprive it of taxes “legally due” falls within the fraud statutes. Baker relies on Pasquantino’s broader principle: a right to be paid money is a species of property. The Tenth Circuit extends that logic to private creditors—recognizing that a scheme to conceal assets and frustrate collection can satisfy §1343’s property element, even absent a judgment or security interest.
Shaw v. United States, 580 U.S. 63 (2016): Interpreting bank fraud, Shaw recognized a bank’s property interests in funds it holds, including both ownership and, at minimum, a bailee’s possessory right. Baker imports Shaw’s reasoning to escrowed funds: the escrow agent’s possessory and contractually conferred benefits constitute property interests that can be targeted by fraud.
United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012) & United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007): These cases require proof that communications “actually cross state lines” for statutes using “in interstate commerce.” The court reaffirms that mere Internet use is not enough. Without evidence of multi-state access, out-of-state servers, or routing, the interstate element fails.
Cleveland v. United States (2000) & Kelly v. United States (2020): Though invoked by the dissent, these cases underscore that the object of the fraud must be “property in the victim’s hands,” and that property cannot be a mere incidental byproduct. The majority reasons that Baker’s lies directly targeted property interests of Shane (the enforceable right to repayment) and Old Republic (its possessory/contractual rights).
Ciminelli v. United States (2023) & McCormick v. United States (1991): The dissent relies on these cases to caution against affirming on a theory not presented to the jury. The majority responds that the government’s theory—that Matthew schemed to avoid repaying Shane—was consistently presented, the instructions used the statutory language (“money or property”), and neither side asked the court to cabin “property” to a specific res.
Other supportive authorities: United States v. Ali (9th Cir. 2010), United States v. Jones (9th Cir. 2007), United States v. Van Doren (8th Cir. 2015), and United States v. Stewart (10th Cir. 1989) collectively illustrate that schemes deceiving a counterparty or creditor to avoid paying money “rightly due” can constitute mail/wire fraud, and that deception to retain or misdirect proceeds can be actionable.

Legal Reasoning

1) “Property” under §1343: Private creditor’s right to repayment

The court centers its property analysis on Pasquantino’s concept that a legal entitlement to be paid money is property. It views Shane’s status as a creditor as conferring a valuable entitlement to collect $445,000, and it characterizes Matthew’s conduct—lying to the escrow agent and fabricating documentation to obscure the proceeds—as a scheme designed to frustrate Shane’s collection. The court explicitly distinguishes mere nonpayment of a debt (not wire fraud) from a deceitful scheme to impair collection (potential wire fraud).

Key move: The court rejects the notion that the victim must have a judgment or security interest tied to the very asset at issue (here, the assignment fee). It is enough, under §1343, that the defendant’s deceptive conduct aims to deprive a creditor of the benefit of repayment—i.e., to keep the creditor from recovering money legally owed.

2) “Property” under §1343: Escrow agent’s property interests

Relying on Shaw’s analogy, the panel holds that Old Republic, as escrow agent, had cognizable property interests in the escrowed funds:

Contractual “collateral benefits” in banking relationships involving the escrowed funds;
A possessory, bailee-like right to hold the funds vis-à-vis the world, constrained by the escrow agreement’s terms.

Since Matthew attempted to deceive Old Republic into disbursing the funds improperly, he targeted Old Republic’s property interests. The court emphasizes that, as with banks in Shaw, an intermediary can be defrauded of its property even if the ultimate beneficial ownership rests with others.

3) Interstate element for wire fraud: Internet use is not enough

The panel reverses Count II (the Internet-based alteration of corporate records) because the government proved only that Matthew and Old Republic accessed the same Utah website from Utah, and that the website was generally accessible from elsewhere. Under Kieffer and Schaefer, §1343’s “in interstate commerce” language requires proof that the charged communication actually crossed state lines. Satisfying this element typically involves:

Evidence of server locations in different states;
Proof that the same content was accessed from different states (showing cross-border transmission); or
Network routing evidence demonstrating interstate carriage.

The government’s proof fell short because it did not tie Matthew’s specific transmission to any multi-state movement.

4) Evidentiary claim: No sua sponte duty; invited error and irrelevance

Matthew faulted the district court for supposedly failing to admit, on its own motion, a state-court interpleader judgment ruling the assignment fee belonged to him. The court characterizes the claim as unpreserved and essentially invited error: after the court reserved ruling on the government’s motion in limine, Matthew never offered the judgment at trial. On plain-error review, there is no principle requiring a court to admit evidence sua sponte, and, in any event, the judgment had limited relevance to the wire-fraud theory (which focused on concealed proceeds impeding Shane’s collection) and risked confusing the jury.

5) Sentencing: No recalculation of loss under §2B1.1

Because the property interest supporting Count I was Shane’s status as a creditor rather than Shane’s ownership of the assignment fee, the court rejects an offset argument that would treat the assignment fee as collateral reducing loss. The district court’s loss calculation—based on the $445,000 debt—stands.

6) Criminal contempt: Grand-jury initiation is permissible

Section 401 vests courts with the power to punish contempt; it does not speak to who may prosecute. The Department of Justice has a statutory duty to prosecute “offenses against the United States” (28 U.S.C. §547), and criminal contempt is such an offense. The court aligns with authority permitting prosecution by indictment. Rule 7’s advisory note confirms indictment is a permissible method to bring felony criminal contempt charges.

7) Second Amendment challenge: §922(g)(1) remains valid in the Tenth Circuit

Following circuit precedent in Vincent v. Bondi (2025), the panel affirms the constitutionality of §922(g)(1) as applied to nonviolent felons.

The Partial Dissent: Preservation, Theory Shifts, and Scope of “Property”

Judge Phillips agrees with most of the majority but dissents as to the affirmance of wire-fraud Count I. He argues:

Appellate courts may not affirm criminal convictions on theories not presented to the jury (McCormick; Ciminelli). In his view, the government tried Count I on the theory that Shane had a property interest in the assignment fee; on appeal, the government re-framed “property” as the debt itself. Likewise, the government’s Old Republic theory at trial was “avoidance of liability,” not the escrow-possessory theory the majority embraces.
On the merits, he cautions that the majority’s approach risks expanding wire fraud to cover incidental harms—i.e., using proceeds for personal benefit while failing to notify a creditor of unrelated loans—absent proof that the defendant’s deception specifically targeted the creditor’s property.
He further questions whether Shane’s loans were legally enforceable, suggesting they may have been gifts or too indefinite under Utah law to be actionable, thereby undermining the premise that “money legally due” existed.

The majority responds that the government’s trial theory was clear from opening statements—Matthew schemed “to not pay his brother back”—and that the jury instructions tracked the statute (“money or property”) without cabining “property” to the assignment fee. Neither party sought a limiting instruction, and the evidence sufficed to find a scheme to deprive both Shane and Old Republic of cognizable property interests.

Impact and Practical Implications

Wire-fraud “property” in creditor-debtor scenarios: In the Tenth Circuit, prosecutors may charge schemes that conceal assets and deceive intermediaries to frustrate a private creditor’s collection, even where the creditor lacks a judgment or security interest. Defense counsel should be prepared to litigate whether alleged deception truly targets the creditor’s property versus causing only an incidental deprivation (a point emphasized by the dissent).
Intermediary victims: Escrow agents are in the frame: Escrow and other financial intermediaries can be “property” victims under §1343 based on possessory rights and contract-derived benefits. This increases exposure for fraudsters who attempt to manipulate closings and settlement disbursements through deceit.
Proof of “interstate” in Internet cases: The government must present technical, case-specific evidence (server locations, routing, multi-state access) to satisfy §1343’s interstate element. Mere accessibility of a site “from anywhere” is not proof that a given transmission crossed a border. Investigators should lock down forensic proof of cross-state paths; defense counsel should scrutinize this element whenever the communication plausibly remained intrastate.
Contempt practice: DOJ may initiate §401 criminal contempt via indictment. This aligns with separation-of-powers principles recognizing contempt as an “offense against the United States,” while preserving the court’s power to punish it. Practitioners should anticipate that prosecutors, not just courts, can drive contempt enforcement.
Second Amendment in the Tenth Circuit: Felon-in-possession charges remain viable against nonviolent felons under circuit precedent unless and until altered by en banc or Supreme Court authority.
Trial practice and instructions: Where “property” may be contested, both sides should consider seeking tailored instructions identifying what interests qualify as “property” to mitigate later appellate disputes about theory-shifting.

Complex Concepts Simplified

“Property” under wire fraud: The statute targets schemes to obtain money or property. Courts read “property” broadly to include rights to be paid money (like tax claims or debts), possessory interests, and certain contractual entitlements. It does not reach schemes where “property” is only an incidental byproduct.
Creditor’s right to repayment as property: A creditor’s entitlement to collect money due is property. Deceit intended to conceal assets and defeat collection can be wire fraud; simple nonpayment, without deception, is not.
Escrow agents’ property interests: Escrow companies often have the contractual right to place funds, obtain certain financial benefits (like services or interest), and possess funds under agreed conditions. These give them protectable property interests akin to those recognized for banks.
Interstate element in §1343: The government must show the specific transmission crossed a state line. Proving that a website could be accessed nationally is not enough; evidence must tie the charged communication to an actual cross-border path.
Invited error and plain error: If a party fails to offer evidence after the court invites a proffer, it generally cannot complain on appeal that the court did not introduce it. Plain-error review requires showing a clear error that affected substantial rights and the fairness of proceedings.
Interpleader judgment: A civil judgment settling rights to funds held by a stakeholder (like an escrow) may be irrelevant in a criminal case focused on deception to frustrate a creditor’s collection; it can also risk confusing the issues.
Criminal contempt initiation: Although §401 is titled “Power of court,” it addresses punishment authority, not initiation. Prosecutors can initiate contempt as an “offense against the United States,” including by grand-jury indictment.
Felon-in-possession and the Second Amendment: In the Tenth Circuit, §922(g)(1) remains constitutional as applied to nonviolent felons under current precedent.

Conclusion

United States v. Baker significantly clarifies “property” under §1343 in two ways that will matter in day-to-day prosecutions: a private creditor’s right to repayment can be the property targeted by a fraudulent scheme to frustrate collection, and escrow agents possess property interests sufficient to make them victims of wire fraud. At the same time, the court tightens the government’s evidentiary burden on the interstate element, reiterating that Internet use alone is not enough—actual cross-border proof is required. The decision also removes any doubt that criminal contempt may be prosecuted by indictment and confirms, under circuit law, the constitutionality of §922(g)(1) for nonviolent felons.

The partial dissent underscores a recurring theme in federal fraud jurisprudence after Kelly and Ciminelli: ensuring that the theory of “property” tried to the jury matches the theory used on appeal. Going forward, litigants in the Tenth Circuit should expect robust debates over how specifically “property” must be identified in instructions and whether a particular scheme truly targeted the victim’s property rather than incidentally affecting it. Against that backdrop, Baker offers both doctrinal guidance and practical lessons—about proof of interstate transmissions, the scope of property, and the channels through which contempt may be brought.