Officer Loses Pension On Conviction Of Wire Fraud

Written on 11/05/2022
Will Aitchison

The retirement system for San Francisco police officers is contained in the City’s charter, which created the San Francisco Employees’ Retirement System (SFERS). Under the charter, an individual convicted of a crime involving moral turpitude committed in connection with his or her official duties forfeits all rights to his or her SFERS retirement benefits. Ian Furminger was a sergeant with the San Francisco Police Department (SFPD) and was enrolled in SFERS.

On December 5, 2014, Furminger was found guilty of four federal crimes: (1) two violations of 18 U.S.C. § 1343 (wire fraud); (2) one violation of 18 US.C. § 241 (conspiracy against civil rights); (3) and one violation of 18 U.S.C. § 371 (conspiracy to commit theft con­cerning federally funded program). The convictions arose out of Furminger’s participation in a scheme with other SFPD officers. While executing search warrants, making arrests, and seizing evidence, the officers stole money, drugs, gift cards, and other valuable items for their personal benefit.

Furminger was sentenced to serve a term of 41 months in federal prison and three years on supervised release, to pay a $25,000 fine, and to complete 120 hours of community service. After he was indicted, Furminger was suspended without pay. Following his conviction, Furminger resigned from SFPD.

On April 10, 2015, SFERS notified Furminger that pursuant to his convic­tions of crimes committed in connection with his service as a police officer, he had forfeited the right to his pension except for refund of his accumulated contributions. When Furminger chal­lenged the forfeiture of his pension, the matter wound up before the California Court of Appeals.

The Court upheld the forfeiture order. Furminger argued wire fraud was not a crime involving moral turpitude because it did not require that the perpe­trator made any specific false statement or that a victim was actually deceived or harmed. As the Court bluntly put it: “He is mistaken. Furminger’s wire fraud conviction is conclusive proof that he committed all acts necessary to consti­tute the offense. To determine whether it involves moral turpitude, we look to its elements to see if the least adjudicated elements of the conviction necessarily involve moral turpitude. This means that from the elements of the offense alone – without regard to the facts of the particular violation – one can reasonably infer the presence of moral turpitude.

“Analyzed under this test, there is no doubt that federal wire fraud is such an offense. The elements of wire fraud are: (1) the existence of a scheme to defraud; (2) the use of wire, radio, or television to further the scheme; and (3) a specific intent to defraud. The specific intent requirement is an aspect of the scheme to defraud requirement, i.e., there is no fraudulent scheme without specific intent.

“State and federal courts have consistently recognized that a crime in which an intent to defraud is an essen­tial element is a crime involving moral turpitude. Furminger’s arguments to the contrary are meritless. Our view is that Furminger’s insistence that ‘fraud is not an essential element of wire fraud’ veers uncomfortably close to the line between zealous advocacy and misrepresentation of the law.

“Prior to oral argument, this court notified Furminger’s attorney, David P. Clisham, that it was considering sanction­ing him for pursuing a frivolous appeal. Much as we are troubled by Furminger’s unsupportable arguments, we assume that counsel’s motive was his misguided view that he was providing vigorous advocacy. Therefore, we do not impose sanctions. Its issuance should warn Furminger’s counsel that another court may inter­pret adherence to a baseless position as deliberate misrepresentation of the law constituting bad faith.”

Furminger v. City and County of San Francisco Retirement System, 2021 WL 5027692 (Cal. Ct. App. 2021).

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