Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.

 Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.

Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.

Sufficient evidence for conviction.  Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.

USA v. Kendrick Eugene Duldulao, et al.

Seventh Circuit: USA v. Darrick Vallodolid

In that the political beliefs expressed about immigration policy and discriminatory law enforcement were not exclusively rooted in the venirepersons' ethnicity, their removal from the pool of jurors wasn't constitutionally impermissible.

Given the small size of the sample, statistical analysis and disparate impact analysis alone is insufficient to establish discriminatory nature of the strikes.

As the eyewitness testimony was riddled with inconsistencies beyond the exculpatory ones, it was for the finder of fact to determine its credibility.

Sufficient evidence to find that the crime was gang-related, even absent formal affiliation with the gang, in that it furthered the activities of the former gang.

Sufficient evidence of the conspiracy to admit the statement of the co-conspirator.  Statement indicating possession of drugs in the house admitted not for the truth of the matter asserted, but to establish that the robbers believed there to be drugs there.

Sufficient evidence for conspiracy, given the customary procedures of the gangs and the defts' involvement with them.  Sufficient circumstantial evidence to establish drug quantities.

Federal RICO proceeding wasn't required to incorporate state predicate offense's procedural requirement of bifurcated penalty phase.

USA v.  Darrick Vallodolid

Fifth Circuit: USA v. Singletary

Given that the deft conspired to supply firearms to drug dealers, the conspiracy among the drug dealers to sell drugs is distinct from the conspiracy to supply them with firearms, and therefore a valid predicate for the increased sentence.

The distinction between these conspiracies also serves to separate the two relevant sentencing factors, so that they're not double-counting the same offense.

USA v. Singletary

Ninth Circuit: USA v. Edwin Mendez

Given the statutory right not to be tried as an adult for crimes committed as a juvenile, denial of the dismissal of a post-majority superseding indictment charging the deft with a different set of crimes is sufficiently final to be the basis of an interlocutory appeal.

Deft's post-majority acts of conspiracy ratified their juvenile acts, enabling them to be charged as an adult, despite the fact that the acts had already been the subject of juvenile proceedings.  The ratification both removed the statutory protections against the transfer to adult proceedings and converted the pre-majority conspiracy to a crime rather than an act of delinquency.

USA v. Edwin Mendez

Fifth Circuit: USA v. Kieffer, et al

 

Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony.  De novo review, as both counsel recited the form of the motion for acquittal.

Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.

Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.

Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.

CONCURRENCE IN THE JUDGMENT:

The appeal of the felon in possession count shouldn't have been de novo, even arguendo.

USA v. Kieffer, et al

Fourth Circuit: US v. Bijan Rafiekian

 

Under the statute, an agent of a foreign government operates under foreign direction and control in something more than a one-sided agreement, but one that doesn't necessarily rise to the level of control suggested by employment.

The exclusion of foreign legal transactions from the statute's reach is an affirmative defense, not an element.  Affirmative defenses are not necessarily smaller in scope, and can be used to define the statute's scope.

Circumstantial evidence and rational inference may be used to establish that a person was acting as an agent of a foreign government.

Court erred in granting acquittal, since a rational juror might have determined that the organizational structure and contacts sufficiently established the possibility of foreign direction and control.

Court erred in granting acquittal on Conspiracy, given the agreements, intent to fly below the radar, and decision not to file a notification with the AG.

One-sentence explanation for the granting of a new trial due to the weight of the evidence was categorically insufficient.

Court abused its discretion in holding that the jurors would not honor the limiting instruction on hearsay materials, given the volume of the materials; the ability of the jury to respect their instructions is an almost invariable assumption of the law.

Restricting the reasons for granting a new trial to the ones recited in the motion, including noting the cumulative error, is a jurisdictional limit.

US v. Bijan Rafiekian 

DC Circuit: USA v. Shan Shi

 

Even absent testimony from cooperating witnesses that the deft had entered into the trade secret conspiracy, there was sufficient substantial evidence for the finder of fact to conclude from the circumstances that such a tacit conspiracy existed, and that the deft had agreed to join it.

Sufficient evidence to indicate that at least two conspirators believed that the appropriated information contained trade secrets.

CONCURRENCE:

The government didn't misrepresent the evidence.

CONCURRENCE:

The government misrepresented the evidence.

USA v. Shan Shi

Sixth Circuit: United States v. Jason Rosales

 

Sufficient evidence for drug conspiracy, since, despite the fact that drugs were never mentioned between the the two, the structure and manner of the single transaction, combined with the amount of drugs involved, would allow a reasonable finder of fact to convict.  Deft's version of events did not have to be disproven.

Given statutory mandatory minimums, sentencing instructions that looked to the whole conspiracy to establish drug quantities, rather than calculating the amount that each defendant was either responsible for or might reasonably have thought to be involved was harmless error, as there was only a single unit involved in the single transaction.

For the Obstruction of Justice sentencing bump, the court needed to make specific findings of the material hindrance to the investigation caused by deft's throwing the cell phone against the ground; although the sentence ultimately varied downward, remanded for reconsideration.

United States v. Jason Rosales

Eighth Circuit: United States v. Timothy Burns

 

As the executive had access to the financials, exercised purchasing authority, and ran the day-to-day operations, evidence was sufficient for a finding of willful blindness as to the representations; also, the willful blindness instruction was appropriate.

Indictment alleging two codefts engaged in conspiracy and wire fraud was not constructively amended by a theory of the case that the offenses were committed with others as opposed to each other, since the text of the law refers to a single defendant.

No clear error in the court's refusal to give an explicit unanimity instruction, or in not explicitly defining the scienter alternatives to willful blindness.

Court's not polling the jury can't be raised on appeal when explicitly waived at trial.

United States  v.  Timothy Burns

Sixth Circuit: Todd Courser v. Keith Allard

 

Court appropriately dismissed S1983 & S1985 claims, as the constitutional interests were not pleaded with particularity.

Court appropriately did the same to state constitutional claims, as those are limited to official-capacity claims.

Alleged CFAA violations resulted in no harm, and there is no civil c/a to enforce the criminal elements of the statute.

Defamation claim was time-barred under state SOL.

To state a claim for civil conspiracy, the underlying tort harm needs to be established -- the defts can't be implicated in a tort that requires them to be the tortfeasors by a claim of conspiracy.

Other tort and RICO claims legally or factually insufficient.

Wiretap Act time-barred.

Court appropriately set aside default judgment against one deft on equitable grounds.

Todd Courser v. Keith Allard

Eighth Circuit: United States v. Kinzey Shaw

Degree of coordination established at trial sufficed for the conspiracy count and for calculating drug quantities from shared sales.

As the bottle tested was established to have held a certain percentage of the controlled substance analogue, it was reasonable for the court to assume that the others held the same percentage.

Deft's requests to co-conspirators in holding cell not to "tell on her" sufficed for obstruction of justice sentencing bump.

United States  v.  Kinzey Shaw

Second Circuit: United States v. Atilla

Statute that prohibited evading or avoiding economic sanctions on a foreign nation referred only to evading existing sanctions, not the attempt to avoid the imposition of subsequent sanctions.

Elements of bank fraud and bank fraud conspiracy would necessarily mean that existing sanctions were violated, so harmless error.

Sufficient evidence for prohibited use of US banks, since US dollars were desired, and court heard testimony that there was a high likelihood that the process would pass through a US entity at some point, something that the conspirators were likely well aware of.

Statute prohibiting fraud against the government goes beyond the common-law definition of fraud to encompass any impairment of government functions.

Statute does not trespass on executive conduct of foreign affairs, since DOJ is an executive agency, and they decide to prosecute.

If the refusal to allow a transcript and tape of jail telephone call in for impeachment after gov't witness' claim that he had not said that in America, people have to admit to things they haven't done in order to get free was error, it was harmless error, as the jury was aware that the witness was hoping to receive leniency for his cooperation.

United States v. Atilla

Fifth Circuit: USA v. Chia Lee, et al

Sufficient evidence, given facts.

Where deft lives in a certain judicial district and has a bank in that district, jury might have legitimately found that venue was proper in conspiracy in prosecution; vicinage concerns are not implicated where deft lives in the district.

Jury sending note to judge during proceedings asking for clarification of charges is insufficient to establish improper deliberations where individually interviewed jurors claim that discussion of the merits had not occurred.

Govt experts general statements based on small fraction of files reviewed were harmless error.

Although instruction on deliberate ignorance was an abuse of discretion given lack of purposeful contrivance, inclusion was harmless error.

No clear error where sentencing report estimates drug quantities without a showing on the percentage of lawful prescriptions.

No plain error where conflicting findings would result from using the totality of either of the two versions of the Guidelines, rather than the combination of the two elected by the sentencing court.

Firearm in adjoining office sufficient for sentencing bump where prescriptions were written in an examination room.

USA v. Chia Lee, et al

First Circuit: US v. Pineda Mateo

In conspiracy prosecutions, the government cannot compel the testimony of a co-conspirator spouse.

http://media.ca1.uscourts.gov/pdf.opinions/17-1857P-01A.pdf

Third Circuit: Emil Jutrowski v. Township of Riverdale

Although a plaintiff in a S1983 suit needs to be able to identify the law enforcement officer who injured him in order to present an issue for trial, an allegation of after-the-fact conspiracy supported by omissions or inconsistencies in contemporaneous records can present an issue for trial on the same facts.

http://www2.ca3.uscourts.gov/opinarch/172594p.pdf

Second Circuit: United States v. Kirsch

The organized labor exception to the state extortion statute encompasses only direct demands for assets in the form of traditional labor actions such as strikes and boycotts.  Ejustem. 

State crimes of extortion that are RICO predicates must involve transferable assets. (Not incorporeal.)

Wages and benefits sought for union members through extortion were transferable assets.

Given statute requiring actual participation or authorization on the part of union members in labor violence for culpability, insufficient evidence here.

Jury instruction focusing on victim's state of mind was appropriate, as the crime is instilling fear.

Sentence adjusted on remand for insufficient evidence.

http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/doc/16-3329_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/hilite/

First Circuit: US v. Ocean

Sufficient evidence for conspiracy despite conflict with others and dual role as consumer and salesman for the drug operation -- the common purpose was the increased sale of narcotics.

Absent evidence that the government was attempting to elicit statements from the deft, contents of phone call during pretrial detention to friend who might have been cooperating with the investigation admissible.

Explicit waiver of drug quantity calculation in sentencing memo forecloses challenge on appeal.

District court was within discretion to accept deft's possibly exaggerated calculation of drug quantity.

Reference on cross to lab reports did not inappropriately bronze lay testimony as to drug identification or present confrontation clause argument as to the content of the reports.

http://media.ca1.uscourts.gov/pdf.opinions/16-2468P-01A.pdf

Second Circuit: USA v. Barrett

Since Hobbs Act robbery is rarely used in cases of merely threatened harm, convictions under the act are categorically convictions for a crime of violence.

Hobbs Act robbery conspiracy is a crime of violence, as it necessarily creates a substantial risk of violence.

As statute requires that the number of predicate convictions be determined by the finder of fact in the present trial and conduct-specific aspects of the prior convictions are balanced in this determination, many of the constitutional difficulties with prior convictions under a residual clause can be avoided.  The fact that the predicate convictions weren't determined by the finder of fact in this case was harmless error.


http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/doc/14-2641_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/82545afb-53b7-40bc-96c2-b5760539665a/1/hilite/

Third Circuit: USA v. Amy Gonzalez

Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.

Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime.  Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.

For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.

As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.

A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.

Possibly prejudicial prior family court records properly admitted with limiting instructions.

Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.

Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.

,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.

Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect.  Vouching appropriately limited by instruction.

Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.

Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.

Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.

Injury to victim's children justified the increase of sentence for harming a vulnerable victim.

Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.

http://www2.ca3.uscourts.gov/opinarch/161540p.pdf

Second Circuit: Empire Merchants, LLC, et al. v. Reliable Churchill, LLLP, et al.

Smuggling operation is a single conspiracy for the purposes of civil RICO, as the particularly pleaded effects all result from the single operation.

Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss. 

http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/