Interstate-Wire Element in PPP Wire-Fraud Cases May Be Proven Through SBA Lender-Fee Payment Routing and Foreseeable “Forces Set in Motion”

1. Introduction

The appeal in United States v. Lacona arose from a pandemic-relief fraud prosecution involving Paycheck Protection Program (PPP) loan applications submitted on behalf of a Colorado business, National Financial Services, Inc. (NFS), and related attempted Economic Injury Disaster (EID) loan applications. The government alleged a single continuing scheme (April 2020–April 2021) to defraud the United States and TCF Bank by making material misrepresentations to obtain PPP funds. After a jury convicted Charles James Lacona, Jr. on two wire-fraud counts and one money-laundering count (a Cadillac purchase over $10,000), he challenged:

• Sufficiency of the interstate-commerce proof for wire fraud (arguing the government failed to show wire communications crossed state lines);
• Constructive amendment of (i) the second wire-fraud count and (ii) the money-laundering count (arguing the trial broadened the indictment’s theories); and
• Plain prosecutorial misconduct in closing argument (arguing the government mischaracterized a key accountant witness).

2. Summary of the Opinion

The Tenth Circuit affirmed all convictions. It held:

• Wire-fraud interstate element: The government introduced sufficient evidence that an interstate wire transmission occurred—specifically, the SBA lender-fee “payment file” moved from Colorado to Missouri to New Jersey and then to TCF Bank—and that Lacona “caused” the transmission because it was reasonably foreseeable that his online submissions to an out-of-state bank would trigger wire communications. The government was not required to prove Lacona knew the routing details.
• No constructive amendment (wire fraud): The government consistently pursued the same “single umbrella scheme” theory alleged in the indictment; the instructions required the jury to find the scheme “as alleged in the indictment.” Any narrowing (fewer EID applications emphasized) was a variance, not a constructive amendment.
• No constructive amendment (money laundering): Although the indictment did not explicitly plead “interstate commerce,” it alleged a § 1957 “monetary transaction,” which is statutorily defined as a transaction “in or affecting interstate or foreign commerce.” Evidence that the Cadillac moved through interstate commerce and that payment used a check drawn on TCF Bank supported the nexus and did not broaden the charge.
• No prosecutorial misconduct: The prosecutor’s reference to the accountant’s “records” proving falsity was a permissible summary of evidence (payroll records), not an improper misstatement of testimony or insinuation that the accountant was instructed to commit fraud.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Standards of review and sufficiency framing

• United States v. Clark, 717 F.3d 790 (10th Cir. 2013)
  Used to set the review posture: when a defendant raises sufficiency in a post-trial motion and renews it on appeal, review is de novo. This allowed the panel to independently assess whether the evidence could support the interstate-wire element.
• Cavazos v. Smith, 565 U.S. 1 (2011) and Jackson v. Virginia, 443 U.S. 307 (1979)
  These cases supply the classic sufficiency standard: viewing evidence in the light most favorable to the prosecution, could “any rational trier of fact” find elements beyond a reasonable doubt? The panel applied this lens to the interstate-wire proof.

B. Wire-fraud “interstate wire” element and internet-era proof

• United States v. Zander, 794 F.3d 1220 (10th Cir. 2015)
  Zander provided the three-element summary for § 1343 and, critically, the causation principle that a defendant need not foresee transmission “details.” The panel used Zander to reject the notion that Lacona had to know the specific SBA fee-file routing.
• United States v. Baker, 155 F.4th 1188 (10th Cir. 2025) and United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012)
  These decisions impose a disciplined requirement: the government must prove communications “actually crossed state lines,” and mere “use of the internet” is not enough. The panel distinguished Lacona from Baker/Kieffer by pointing to concrete routing testimony (CO → MO → NJ → TCF), rather than speculation about server locations.
• United States v. Weiss, 630 F.3d 1263 (10th Cir. 2010)
  Weiss supplied the “caused to be transmitted” standard: knowledge or reasonable foreseeability that the scheme would result in the use of wire communications facilities. The court used Weiss to bridge the gap between (i) the interstate transmission (SBA fee file) and (ii) Lacona’s conduct (submitting applications that triggered the fee process).
• United States v. Redcorn, 528 F.3d 727 (10th Cir. 2008), United States v. Mullins, 613 F.3d 1273 (10th Cir. 2010), and United States v. Mann, 884 F.2d 532 (10th Cir. 1989)
  These cases collectively underwrite a broad—but not unlimited—wire-fraud execution theory: it is enough if the defendant “set forces in motion” foreseeably involving wires (Mullins/Zander formulation), and if the communication is “incident to the accomplishment of an essential part” of the scheme (Mann/Redcorn). The panel relied on this line to treat SBA lender-fee payments as sufficiently connected to executing the PPP-loan scheme.
• Schmuck v. United States, 489 U.S. 705 (1989)
  Cited via Redcorn for § 1343’s “purpose” requirement (wire use must be “part of the execution of the scheme as conceived”). Lacona invoked this to argue the “scheme” could not cover the later PPP loan. The court used the same conceptual frame to explain why its inquiry remained about whether the government broadened the indictment—not whether Lacona’s “one scheme” critique was persuasive as a matter of theory.

C. Constructive amendment vs variance (wire fraud)

• United States v. Farr, 536 F.3d 1174 (10th Cir. 2008)
  Used for de novo review of a preserved constructive-amendment claim.
• United States v. Honors, 160 F.4th 1089 (10th Cir. 2025) and United States v. Koerber, 10 F.4th 1083 (10th Cir. 2021)
  These authorities supply the operative definition: constructive amendment occurs when instructions and proof “broaden the indictment.” The court measured the trial against the indictment and found consistent theories and “as alleged in the indictment” instructions.
• United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012)
  Provides the key limitation: not every factual drift matters; constructive amendment requires modification of an essential element or risk of conviction for an uncharged offense. This framed the court’s conclusion that narrowing the EID allegations did not change essential elements.
• Hunter v. State of N.M., 916 F.2d 595 (10th Cir. 1990) and United States v. Miller, 471 U.S. 130 (1985)
  These cases support the “variance” concept: deletion/addition of nonessential facts, or proof that still corresponds to an offense clearly set out in the indictment, generally does not invalidate the conviction. The panel treated any shift as a variance at most, not a constitutional indictment problem.

D. Constructive amendment and plain-error posture (money laundering)

• United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)
  Used on waiver/forfeiture mechanics: failure to argue plain error in the opening brief can waive review, though the court retains discretion to consider plain error raised in a reply brief. The panel exercised that discretion here.
• United States v. Woodmore, 135 F.4th 861 (10th Cir. 2025) and United States v. B.N.M., 107 F.4th 1152 (10th Cir. 2024)
  Provide the four-prong plain-error framework (error, plainness, substantial rights, and discretionary correction). The panel resolved the money-laundering constructive-amendment claim at prong one: no error.

E. Money laundering elements and interstate-commerce nexus

• United States v. Huff, 641 F.3d 1228 (10th Cir. 2011) and United States v. Baum, 555 F.3d 1129 (10th Cir. 2009)
  Supply the elements of § 1957 offenses. The court used them to anchor its analysis of the “monetary transaction” element and how interstate commerce is built into the statutory definition.
• United States v. Lovett, 964 F.2d 1029 (10th Cir. 1992)
  Cited to reinforce that alleging a monetary transaction involving an automobile manufactured in another state can suffice to confer jurisdiction in a money-laundering case. This supported the court’s view that the indictment’s “monetary transaction” allegation was not jurisdictionally defective.

F. Constructive amendment exemplars rejected as inapposite

• United States v. Adams, 778 F.2d 1117 (5th Cir. 1985)
  Adams was a classic constructive-amendment scenario: indictment charged one falsity (false name), but evidence/argument introduced a different falsity (false address), creating risk the jury convicted on an uncharged theory. The panel found Lacona’s situation different because the monetary transaction alleged (Cadillac purchase) was the one proved; the added evidence went to the interstate nexus within the same alleged transaction.
• United States v. Miller, 891 F.3d 1220 (10th Cir. 2018)
  Similarly, Miller involved indictment specifying one false statement, but trial/closing invited conviction on a different false statement too. The panel distinguished it because Lacona did not face a “two different transactions/two different theories of guilt” problem on the money-laundering count.

G. Prosecutorial misconduct standard

• United States v. Holt, 161 F.4th 1253 (10th Cir. 2025)
  Provided the two-part test: improper comment plus unfairness likely affecting the verdict. The court found no improper comment because the prosecutor referenced records (evidence) rather than misquoting testimony.

H. Relationship between predicate fraud and money laundering

• United States v. Lake, 472 F.3 d 1247 (10th Cir. 2007) and United States v. Irvin, 682 F.3d 1254 (10th Cir. 2012)
  Used to contrast outcomes: money laundering fails when the predicate fraud is unsupported (Lake), but survives when criminal derivation is proven (Irvin). Having affirmed the wire-fraud counts, the panel rejected the derivative attack on § 1957.

3.2 Legal Reasoning

A. Proving the “interstate wire” element with a fee-payment file

The central sufficiency dispute concerned § 1343’s requirement that a wire communication be “in interstate or foreign commerce.” Following United States v. Baker and United States v. Kieffer, the court reiterated a strict proposition: the government must prove the communications “actually crossed state lines,” and internet use alone does not satisfy that burden.

The government met that burden not by proving the routing of Lacona’s application submissions themselves, but by proving that SBA’s lender processing-fee “payment file” traveled interstate (Colorado → Missouri → New Jersey → TCF Bank). An SBA attorney established the fee mechanism; a Bureau of the Fiscal Service analyst detailed the specific multistate routing. The court treated this as direct evidence—precisely the kind that was missing in Baker.

B. “Causing” the wire: foreseeability rather than routing knowledge

Because Lacona did not personally transmit the SBA fee-payment file, the key question became causation. Invoking United States v. Weiss and United States v. Zander, the court held the government needed only to show that Lacona knew or reasonably could foresee that his fraudulent applications would result in the use of wire communications facilities; he did not need to foresee the “details of the[] specific transmission[].”

The court tied foreseeability to concrete trial facts: Lacona used TCF’s online application portal, used DocuSign for documentation, communicated with TCF by email, and received a promissory note listing a South Dakota location for TCF. These facts allowed a rational jury to infer that interstate wiring was a foreseeable consequence of applying (digitally) to an out-of-state bank.

C. “Incident to an essential part”: treating lender fees as part of executing the scheme

Under United States v. Redcorn and United States v. Mann, a wire need not be “at the heart of” the scheme; it is enough that it is incident to accomplishing an essential part. The panel reasoned that paying lenders to process PPP loans made lender participation more likely and thus was sufficiently connected to the success of a loan-acquisition fraud. That analysis effectively broadens the practical evidentiary avenues for proving the interstate element in PPP-lender cases: prosecutors may prove an interstate wire “within the PPP ecosystem” (e.g., SBA-to-lender fee processing) so long as it is incident to executing the charged scheme and was foreseeably triggered by the defendant’s conduct.

D. Constructive amendment rejected: consistency across indictment, proof, and instructions

On the second wire-fraud count, Lacona reframed an attack on the government’s “single scheme” theory as a constitutional indictment problem. The court separated the questions: even if one debated whether the evidence better described multiple schemes (given the PPP “second draw” timing), a constructive amendment requires that trial proceedings broaden the indictment’s bases for conviction. Here, the indictment alleged a single scheme spanning April 2020–April 2021; closing argument echoed a single scheme; and the jury was instructed it must find the scheme “as alleged in the indictment.” Any shift regarding the number of EID applications emphasized was, at most, a nonessential narrowing—i.e., a variance under Hunter v. State of N.M. and permissible under United States v. Miller (1985).

E. Money laundering: interstate commerce embedded in the definition of “monetary transaction”

Lacona argued constructive amendment because the indictment did not expressly allege interstate commerce for § 1957. The court’s answer was structural: § 1957 defines “monetary transaction” as an exchange “in or affecting interstate or foreign commerce … by, through, or to a financial institution.” So an indictment alleging a “monetary transaction” in criminally derived property implicitly invokes the interstate-commerce component of that definition. The trial did not swap in a different transaction; it proved the charged Cadillac purchase (via an official check drawn on TCF) and supplied additional evidence that the vehicle moved from Michigan to Colorado.

The court distinguished United States v. Adams and United States v. Miller (2018) because those cases involved “different falsities” than what the indictment charged, creating a risk the jury convicted on an uncharged basis. Lacona faced no comparable risk: the “transaction” remained the Cadillac purchase throughout.

F. Prosecutorial misconduct: argument tied to “records,” not invented testimony

Applying United States v. Holt, the court found no improper comment. The prosecutor’s statement—“the accountant’s records prove” the falsity—was treated as a fair summation of admitted payroll records showing no employees paid until late May 2020, contrasting with PPP representations. The court rejected Lacona’s attempt to convert the comment into a claim that the government vouched for the accountant’s infallibility or implied the accountant was instructed to commit fraud.

3.3 Impact

A. Practical impact on PPP/EID wire-fraud prosecutions (interstate element)

• Alternative evidentiary path for the interstate-wire element: Instead of proving the precise interstate routing of a defendant’s online submissions (often difficult after Baker/Kieffer), the government may prove a different interstate transmission that is incident to executing the scheme (here, SBA’s lender-fee payment routing) and then prove foreseeability/causation.
• Foreseeability anchored in ordinary banking realities: Evidence that the defendant transacted digitally with an out-of-state bank can support the “caused” element even if the defendant did not know the technical routing.
• Litigation focus may shift: Defendants may respond by contesting whether the proffered interstate transmission was truly “incident to an essential part” (Redcorn/Mann) rather than disputing internet routing.

B. Constructive amendment doctrine: reaffirmation of narrow scope

• The decision reinforces that a defendant cannot repackage a disagreement about the government’s narrative (one scheme vs multiple schemes) into constructive amendment unless the trial actually broadened the indictment’s essential elements or permitted conviction on an uncharged basis.
• It also highlights the practical importance of jury instructions requiring proof “as alleged in the indictment” as a safeguard against constructive amendment claims.

C. Money laundering pleadings: “monetary transaction” may implicitly carry interstate commerce

• The court’s analysis suggests that, at least as a constructive-amendment matter, an indictment’s use of the § 1957 statutory term “monetary transaction” can implicitly include the interstate-commerce component found in the definition—reducing the force of arguments premised solely on the indictment’s failure to spell out “interstate commerce.”

D. Appellate preservation: forfeiture/waiver pressures

• The opinion underscores that merely mentioning “constructive amendment” below is insufficient; the argument must be connected to the specific count to preserve it.
• It also reiterates the Tenth Circuit’s practice (via Leffler) that failure to argue plain error in the opening brief risks waiver, though the court may still exercise discretion to consider plain error raised in the reply.

4. Complex Concepts Simplified

Interstate-commerce “wire” element (18 U.S.C. § 1343)

Wire fraud is federal only if the relevant wire communication crosses state lines (or involves foreign commerce). Using the internet does not automatically prove that; prosecutors must show the communication actually traveled interstate. But the defendant does not have to personally send the wire—he can “cause” it if his actions foreseeably trigger interstate wire use.

“Caused to be transmitted” and “set forces in motion”

A defendant “causes” a wire transmission when, by engaging in the scheme, he predictably triggers standard processes that use wires (e.g., banking or government payment workflows). The defendant need not know the wire’s technical route; it is enough that wire use is reasonably foreseeable in the ordinary course.

Constructive amendment vs variance

• Constructive amendment: The trial broadens the indictment—e.g., the jury might convict based on a different theory or element than the grand jury charged. This is serious and typically requires reversal.
• Variance: Evidence at trial differs in some details (extra or fewer nonessential facts), but the defendant is still convicted of the same offense charged. Variances often do not require reversal.

Plain-error review

If an issue was not properly raised in the district court, the appellant must usually satisfy plain error: show a clear legal error that affected substantial rights and seriously affects the fairness/integrity of proceedings. Many appellate claims fail at the first step: no error at all.

5. Conclusion

United States v. Lacona affirms PPP-related wire-fraud and money-laundering convictions by clarifying—consistent with recent Tenth Circuit internet-routing cases—that interstate transmission must be shown with specific evidence, but that the government may satisfy § 1343’s interstate-wire element through an interstate transmission incident to executing the scheme (here, SBA’s lender-fee payment file) coupled with foreseeability-based causation. The court also tightens the boundary between constructive amendment and mere variance, and it treats § 1957’s “monetary transaction” language as implicitly carrying the interstate-commerce component found in the statutory definition. Even as a nonprecedential disposition, the opinion provides a concrete prosecutorial roadmap (and a defense target) for proving or challenging the interstate element in modern, digitally executed bank- and benefit-fraud cases.