OPINION
SLOVITER, Circuit Judge.
Appellant John Keller ("Keller") appeals his convictions for wire fraud and the sentence he received from the District Court, arguing foremost that the evidence was insufficient to show that he caused an interstate wire communication or that any such communication was sufficiently connected to his scheme to defraud.
I.
In August 2001, Keller, a lawyer, under-took to represent Tanya Slavinsky in connection with the sale of her mother's house. Keller charged Slavinsky $27,000 for his services, which she paid in full. Keller placed $300,000 of the proceeds from the sale of the home in an Interest on Lawyers' Trust Account ("IOLTA Account") at a PNC Bank located in Pennsylvania on Slavinsky's behalf. Keller later withdrew $75,000 from that account and gave it to Slavinsky.
Despite repeated assurances by Keller that he could not spend the money without her consent, over the course of two years Keller, unbeknown to Slavinsky, wrote dozens of checks from the IOLTA account and deposited them in his firm's account, held at what is now Wachovia Bank, also in Pennsylvania. Keller used the money to pay his own expenses and those of his law firm.
In 2007, Keller was indicted on seventeen counts of wire fraud in violation of 18 U.S.C. § 1343, as part of a scheme "to steal approximately $225,000 from [Slavinsky] by making unauthorized disbursements of money from his IOLTA account for personal and business expenses." App. at 46 The jury found Keller not guilty of the first five counts, but convicted him of the other twelve. During sentencing, the District Court found that Keller was responsible for a $225,000 loss to Slavinsky, which added twelve levels to the guidelines calculation. The District Court sentenced him to fifty-seven months of imprisonment on each count to run concurrently, and mandated $225,000 in restitution payable to Slavinsky.
Keller moved for acquittal and/or for a new trial on the grounds that there was insufficient evidence on which to convict, the jury instructions were deficient, and the District Court erred in the loss calculation at sentencing. The District Court rejected his arguments and Keller timely appealed.
The District Court had jurisdiction over Keller's claims under 18 U.S.C. § 3231. We have appellate jurisdiction over the final decision of the District Court under 28 U.S.C. § 1291.
II.
When the sufficiency of the evidence is challenged, we view the evidence in a light most favorable to the Government and must sustain the jury's verdict if there is substantial evidence to support it. United States v. Antico, 275 F.3d 245, 260 (3d Cir. 2001). We agree with the District Court that, based on the evidence presented at trial, a reasonable jury could have found beyond a reasonable doubt the essential elements of wire fraud: (1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use, or cause of use, of interstate wire communications in furtherance of the scheme. Id. at 261. Keller only challenges the District Court's finding as to the third element, which has two prongs.
In relevant part, the wire fraud statute provides:
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 . . . [uses wires, or causes their use, in interstate commerce] for the xpurpose 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.
With respect to the first prong, causation, we have held that "`[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he `causes' the mails to be used.'" United States v. Bentz, 21 F.3d 37, 40 (3d Cir. 1994) (internal citations omitted). Keller need not have known or reasonably foreseen the interstate nature of the wire transmissions, but solely that wire transmissions would occur. See, e.g., United States v. Blassingame, 427 F.2d 329, 330 (2d Cir. 1970) ("statute does not condition guilt upon knowing that interstate communication is used"), cited with approval in United States v. Iannelli, 477 F.2d 999, 1002 (3d Cir. 1973). During oral argument, Keller conceded that the use of wire communications in clearing the transfer of checks was reasonably foreseeable. We agree.
The analysis from mail fraud cases is transferable to wire fraud cases. See United States v. Morelli, 169 F.3d 798, 806 n. 9 (3d Cir. 1999) ("the wire fraud and mail fraud statutes differ only in form, not in substance, and cases . . . interpreting one govern the other as well").
To satisfy the second prong, that the wire communications be in furtherance of the fraud, "the use of the [wires] need not be an essential element of the scheme," but rather, "[i]t is sufficient for [the use of the wires] to be incident to an essential part of the scheme, or a step in the plot." Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989) (internal citations, quotations, and brackets omitted). To complete the settlement process between the banks, the daily aggregated data from PNC and Wachovia was transmitted electronically from the respective Pennsylvania bank to the Clearing House Company ("SVPCO") in New York and vice versa. The District Court found that the repeated interstate clearing of checks, as part of an on-going scheme to defraud Slavinsky of the full $225,000 held in the IOLTA account, satisfies the use of wires element of federal wire fraud. We agree.
The District Court distinguished Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), which involved a one-time cashing of a check where the mails were used by the bank after the defendants had already received the cash. The District Court found that, like the Supreme Court's decision in Schmuck where the fraud depended on the continued clearing of title of doctored cars, Keller's scheme "hinged on the continued clearing of his checks. . . ." App. at 15. If any of the checks failed to clear, the funds would not be transferred and Keller's scheme would fail. See also Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954) (interstate clearing of check held to be incident to an essential part of the scheme); United States v. Tiller, 302 F.3d 98, 103 (3d Cir. 2002) (mailing element met in on-going fraud where defendant submitted several false claims to obtain bonuses for work she never actually performed, and employer later mailed invoices to third-party administrator for payment).
As the Government's brief states, even if Keller's account was credited immediately upon depositing any given check, if the clearing process ultimately failed, his account would be debited and "the fraud would be for naught." Appellee's Br. at 20. See United States v. Franks, 309 F.3d 977, 978 (7th Cir. 2002) (distinguishing Kann because it predates the introduction of the Uniform Commercial Code, "which makes it easy for a customer's bank to reverse the credit if the instrument cannot be collected"). The Government presented undisputed evidence connecting the specific checks charged in the indictment to the clearance process. Accordingly, Keller has failed to demonstrate that the District Court erred on this point.
Moreover, we find that the District Court did not abuse its discretion when it refused to give Keller's proposed jury instruction. We agree with the District Court that Keller's proposed instruction, that the scheme to defraud must have "depended in some way" on the use of the wires, provides no meaningful difference from the instruction the District Court gave that the wires must have been "used in some manner to further" the scheme. App. at 17 (internal quotations omitted). The District Court gave, verbatim, the Third Circuit Model Criminal Jury Instruction 6.18.1343-1 for wire fraud, which Keller conceded during the proceedings provided a correct statement of the law.
We review the District Court's decision regarding jury instructions for abuse of discretion and "will order a new trial on account of a district court's refusal to give a proposed jury instruction `only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.`" United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008) (internal citations omitted).
Finally, given the lack of a record quantifying the value of unpaid legal services provided by Keller to Slavinsky after the sale, if any, it was not error for the District Court to assign nothing for the loss reduction for services. The loss need not be determined with precision and the District Court need only make a reasonable estimate of the loss. United States v. Coyle, 63 F.3d 1239, 1251 (3d Cir. 1995) (internal citations and quotations omitted).
We review factual findings, such as the amount of loss, for clear error. United States v. Napier, 273 F.3d 276, 278 (3d Cir. 2001).
Keller's additional argument is without merit. The District Court did not err by considering loss from uncharged and acquitted conduct. See, e.g., United States v. Rudolph, 137 F.3d 173, 177 (3d Cir. 1998) (uncharged conduct may form the basis for upward or downward sentencing adjustments); United States v. Jimenez, 513 F.3d 62, 88 (3d Cir. 2008) (district court can consider acquitted conduct when establishing a sentence).
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
proper screening of an inmate's administrative grievances renders administrative remedies "effectively unavailable" such that exhaustion is not required under the PLRA. If prison officials screen out an inmate's appeals for improper reasons, the inmate cannot pursue the necessary sequence of appeals, and administrative remedies are therefore plainly unavailable.
Recognizing an exception to the PLRA's exhaustion requirement where prison officials improperly screen an inmate's administrative appeals comports with, and indeed promotes, the requirement's purposes. As the Supreme Court has explained, administrative exhaustion serves two purposes. First, "[e]xhaustion gives an agency `an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.'" Ngo, 548 U.S. at 89, 126 S.Ct. 2378 (quoting McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Second, "exhaustion promotes efficiency" by allowing claims to "be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court," by sometimes "convinc[ing] the losing party not to pursue the matter in federal court," and by "produc[ing] a useful record for subsequent judicial consideration" in cases where the claim does eventually reach federal court. Id. (internal quotation marks omitted). If inmates did not pursue administrative remedies, these benefits would not be realized. Thus, to promote these benefits, the PLRA makes exhaustion a prerequisite to suit so that inmates have an incentive to pursue administrative proceedings that they might otherwise prefer to skip. See id. at 90, 126 S.Ct. 2378.
Just as the PLRA promotes the benefits of exhaustion in this way, the exception we recognize today promotes exhaustion's benefits by removing any incentive prison officials might otherwise have to avoid meaningfully considering inmates' grievances by screening them for improper reasons. Excusing a failure to exhaust when prison officials improperly screen an inmate's administrative appeals helps ensure that prison officials will consider and resolve grievances internally and helps encourage use of administrative proceedings in which a record can be developed that will improve the quality of decision-making in any eventual lawsuit. At the same time, this exception does not alter prisoners' incentive to pursue administrative remedies to the extent possible.
2
Having recognized an exception to the PLRA's exhaustion requirement where a prison official renders administrative remedies effectively unavailable by improperly screening a prisoner's grievances, we must next determine whether Sapp falls within this exception. To fall within this exception, a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted by improper screening. In particular, the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations.
A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The California regulations require only that an inmate "describe the problem and the action requested." Cal. Code Regs. tit. 15, § 3084.2(a). Where, as here, a prison's regulations are "incomplete as to the factual specificity [required in an inmate's grievance], a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (internal quotation marks omitted).
Sapp pursues three claims against three defendants in this suit. He alleges that Peterson denied him needed medical treatment for his eye condition; that Van Cor denied him an Olson review of his medical records; and that Kimbrell improperly screened his grievances seeking medical care. We conclude that Sapp's grievances would have sufficed to exhaust only the claim against Peterson.
Sapp's grievances alerted the prison to the nature of his complaint regarding medical treatment for his eye condition. In his grievances, Sapp explained that he was having trouble getting medical treatment and that he may have developed an eye infection, and he requested eyelid surgery and a follow-up appointment with a doctor at UC Davis. Further, contrary to the district court's conclusion, Sapp was not required to identify Peterson by name to exhaust the grievance against him. Neither the PLRA itself nor the California regulations require an inmate to identify responsible parties or otherwise to signal who ultimately may be sued. See Jones, 549 U.S. at 217, 127 S.Ct. 910 ("[N]othing in the [PLRA] imposes a `name all defendants' requirement."). Sapp's grievances therefore would have sufficed to exhaust his claim against Peterson for the denial of adequate medical treatment.
By contrast, no grievance that was screened — properly or improperly — would have sufficed to exhaust Sapp's claim against Van Cor for failing to give him an Olson review of his medical records. The grievances that Sapp alleges were improperly screened did not mention the denial of an Olson review at all. Although Sapp filed a substantively sufficient administrative appeal regarding this problem on November 18, 2002, he did not even wait for a response before pursuing this suit — indeed, he signed his federal complaint on the same day he filed that appeal. Sapp therefore cannot establish that any improper screening prevented him from exhausting this grievance, and he accordingly cannot pursue his Olson review claim against Van Cor.
Sapp's screened grievances similarly would not have sufficed to exhaust his claim against Kimbrell for improper screening of his administrative appeals. Again, Sapp first mentioned this problem in the November 18 grievance that he did not even attempt to exhaust before filing this suit. Thus, to the extent that Sapp seeks to pursue a freestanding claim against Kimbrell for improperly screening his appeals, he cannot because he did not attempt to pursue administrative remedies for this problem before filing this federal suit.
We do not, however, mean to suggest that an inmate must attempt to exhaust a grievance about any improper screening in order for improper screening to excuse a failure to exhaust other claims.
Thus, Sapp filed administrative grievances that would have sufficed to exhaust only his inadequate medical care claim against Peterson. We accordingly must next determine whether the grievances raising that claim were screened for improper reasons.
On the record before us, it appears that Sapp's administrative grievances about medical care for his eye condition were effectively screened out five times. We consider each screening in turn. First, prison officials declined to consider a complaint about Sapp's eye condition that he raised for the first time in a second-level appeal about medical care for a skin condition. There, officials explained that the eye issue had to be raised in a separate appeal, starting at the first level. This screening was proper; an inmate must first present a complaint at the first level of the administrative process. See Cal. Code Regs. tit. 15, § 3084.5.
Next, officials screened out a first-level appeal about Sapp's eye condition for an unknown reason in early June 2002. Because Sapp does not even mention this appeal in his briefs, we assume that he does not contend that it was improperly screened.
A few days later, Sapp filed an appeal indicating that he was having "great difficulty" obtaining medical care and explaining that prison staff had not followed up on a referral to see an eye specialist at UC Davis. His appeal also noted that he was "unable to recover in malpractice." In the "Action Requested" box, Sapp explained that he sought to "recover from a critical problem where a long ongoing denial of adequate medical care and malpractice which took place in prison. The issues are so disturbing and complex that the only way to remedy the situation is to continue filing 602's and try to remedy the issue any way possible. `Medical staff here are aware of the issues.'" Kimbrell screened out this appeal, telling Sapp to "[b]e specific about eye condition and action requested." This screening also was proper, as the regulations require inmates to "describe the . . . action requested." Id. § 3084.2(a). Although Sapp's grievance may have implied that he wanted to see any eye specialist, Sapp indicated in the "Action Requested" box that he wanted to "recover from a critical problem" involving malpractice. Given the mixed messages in Sapp's grievance, it was appropriate for the screener to seek clarification of the problem for which Sapp sought redress.
About a week after that appeal was rejected, Sapp visited a doctor at the UC Davis Ophthalmology Department. Approximately two weeks later, on June 30, 2002, Sapp submitted an administrative grievance that contained a detailed description of the history and nature of his eye injury. In the "Action Requested" box, Sapp wrote, "I'm requesting treatment as soon as possible, because I need the eyelid surgery, and I may have developed an eye infection. Plus the doctor seems to know what to do as far as my eyelids. The issues that lead [sic] up to the damage are disturbing and I have been diligent in tr[y]ing to remedy the situation." Two days later, Kimbrell screened out this appeal, this time because Sapp had not attached a Health Care Request Form showing that he had sought, and been denied, medical treatment. Kimbrell further explained, "Clarify the issue, have you been treated at SAC [this prison] for this condition? If you have not recently requested treatment at SAC submit of [sic] CDC 7362 [Health Care Request form] to the Clinic." This screening was also proper. The regulations allow an appeal to be rejected if "necessary supporting documents are not attached." Id. § 3084.3(c)(5). Sapp did not include a copy of a Health Care Request form indicating that he had tried to obtain medical care through the proper channels. Nor did Sapp contest the screening decision by returning the form "with the necessary information" — in this case, a 7362 Health Care Request form showing that he had sought, and been denied, medical care — as boilerplate text at the bottom of the screening form advised him he could do. Importantly, the screening did not preclude Sapp from getting medical care. To the contrary, it instructed him on how to get it: by submitting a CDC 7362 form to the clinic.
More than two weeks later, on July 20, Sapp submitted a 7362 form requesting a follow-up appointment with the ophthalmologist at UC Davis. Although the record does not reveal whether or how prison officials responded to this request, Sapp never filed a grievance about the officials' failure to respond adequately to this request.
On August 30, Kimbrell again rejected the appeal that Sapp had submitted on June 30, this time for failure to comply with the 15-day time limit. On the screening form, Kimbrell explained that a prison official had personally interviewed Sapp the day before, and that Sapp had indicated that this was an "old issue" that he had appealed in 1990. This screening was also proper. The form indicates that prison officials, consistent with the regulations, recognized that Sapp appeared to have difficulty explaining his complaint in writing and accordingly had interviewed him in person to clarify the basis of the grievance. See id. § 3084.3(b)(3) (requiring an interview when "an appeal indicates the appellant has difficulty describing the problem in writing"). In this interview, Sapp apparently explained that he sought to appeal the inadequate medical care he had received in 1990 when his eye was first injured in prison. If this were his complaint, he did indeed miss the 15-day deadline. Importantly, however, Kimbrell also acknowledged that Sapp might be seeking current medical treatment and again advised him on how to get it, noting at the bottom of the form, "If you need medical treatment, submit a CDC 7362 to the Clinic."
Sapp claims that he did not resubmit his June 30 appeal form, so it is unclear why Kimbrell rejected this form a second time. Why Kimbrell considered this appeal again, however, is irrelevant to our analysis.
Thus, all of Sapp's administrative appeals were screened for proper reasons. Administrative remedies were accordingly "available," and Sapp was required to exhaust them.
In reaching this conclusion, we do not foreclose the possibility that exhaustion might also be excused where repeated rejections of an inmate's grievances at the screening stage give rise to a reasonable good faith belief that administrative remedies are effectively unavailable. Such an excuse is not available here, however, because, despite the repeated screenings, Sapp could have no reasonable belief that administrative remedies were effectively unavailable. Kimbrell specifically instructed Sapp on how to seek medical care, and on how to appeal any denial of care, but Sapp did not follow those instructions.
We further note that nothing in the district court record suggests that the prison had created draconian procedural requirements that would "trip[] up all but the most skillful prisoners" — which might also render administrative remedies effectively unavailable so as to excuse a failure to exhaust. See Ngo, 548 U.S. at 102, 126 S.Ct. 2378 (leaving open the possibility that an exception to the exhaustion requirement might exist in such circumstances). Sapp had a clear avenue to follow to receive medical care or to exhaust his remedies if he did not receive the desired care. First, he could have filed a 7362 Health Care Request form, as Kimbrell suggested he do. If prison officials did not respond, or did not provide the needed care, he could have filed a grievance about the denial of care, and appended the form showing that he had requested the care in accordance with prison procedures. Then, he could have pursued that grievance through the full administrative appeals process. Nothing in the record indicates that these apparently straightforward procedures "trip[] up" ordinary inmates. To the contrary, Sapp has proven his own ability to navigate them, as he successfully exhausted a grievance about medical care for a skin condition around the same time as he pursued his appeals about his eye condition.
Because Sapp's grievances were properly screened, because he had no reasonable good faith belief that administrative remedies were effectively unavailable, and because the prison's administrative grievance regime was not so complex as to trip up most prisoners, administrative remedies were available within the meaning of the PLRA, and Sapp was accordingly required to exhaust them.
B. Equitable Exception to Exhaustion
We next consider whether, notwithstanding the availability of administrative remedies, Sapp's special circumstances entitle him to an equitable exception to the PLRA's exhaustion requirement. Although Sapp does not precisely articulate what equitable exception would apply to him, he suggests that his significant difficulty in following the grievance process, his reasonable belief that he could not pursue the grievance process any further, his limited education, and the fact that he did not deliberately bypass the administrative scheme warrant an equitable exception here.
We need not decide here whether such circumstances might warrant an equitable exception to the PLRA's exhaustion requirement, however, because Sapp would not qualify for it. Although Sapp's request for a reasonable accommodation to help him satisfactorily complete an administrative grievance form and his many attempts to pursue his complaint outside of the prison's administrative grievance process — through letters to the Medical Board of California, the warden, and the California Inspector General — suggest that Sapp did believe in good faith that he could not pursue the administrative grievance process any further, that subjective belief was not reasonable, as explained above. The procedures for obtaining medical care were clear: file a 7362 Health Care Request form, and then file an administrative grievance if officials failed to respond. Kimbrell specifically advised Sapp to submit a 7362 form if he sought medical care. Although Sapp filed several such forms, he never followed up by filing a grievance about prison officials' failure to respond adequately to those requests. Because he never even attempted to file any such grievance, he could not have reasonably believed that he could not pursue the administrative appeals process any further.
We therefore decline to excuse Sapp's failure to exhaust under the equitable exception he proposes.
IV. Conclusion
We hold that administrative remedies are "effectively unavailable" — and that the PLRA's exhaustion requirement is therefore excused — where prison officials improperly screen a prisoner's grievance or grievances that would have sufficed to exhaust the claim that the prisoner seeks to pursue in federal court. Nonetheless, we conclude that Sapp's failure to exhaust is not excused because prison officials did not improperly screen any grievances that would have sufficed to exhaust his claims. We further conclude that Sapp is not entitled to any equitable exception to the PLRA's exhaustion requirement. We accordingly affirm the district court's order dismissing Sapp's claims without prejudice.
AFFIRMED.