No constitutional error where a court limits cross-examination on a peripheral issue designed to suggest bias and motive to lie, so long as the theory of the attack is made plain.
No clear error in sentencing calculation of loss amounts that didn't take into account the lawfulness of claims asserted in the debt incurred during the fraud.
No error in sentencing calculation of number of victims by totalling the number of creditors stayed by each fraudulent petition.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-06/C:17-2244:J:Flaum:aut:T:fnOp:N:2166680:S:0
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label Fraud. Show all posts
Showing posts with label Fraud. Show all posts
Eighth Circuit: United States v. Julia Nguyen
Immigration, Fraud, White Collar
Materiality requirement in immigration fraud statute does not require that the agency actually be misled, merely that false information be provided on a dispositive fact.
Third-party, cirumstantially proved misrepresentations provide sufficient evidence for immigration and SSI fraud.
Automatically generated letters from state sufficient for mail fraud conviction where foreseeable and not communicating messages adverse to the scheme to defraud.
Court properly considered named payees on checks without individualized showing of loss, as the theft of identity is sufficient to establish them as victim.
Sentence substantively reasonable.
United States v. Julia Nguyen
Second Circuit: SRM Global Master Fund Ltd. P’ship v. Bear Stearns Cos.
Securities, Class Actions, Statute of Limitations, Fraud
Equitable tolling of the statute of limitations against individual claims during the period in which a class is certified is not available for claims of material misrepresentation under the securities laws, as the limiting statute is a statute of repose that creates a substantive right immune to common law equitable relief.
Insufficient proof of reliance for common law fraud claims.
SRM Global Master Fund Ltd. P’ship v. Bear Stearns Cos.
Second Circuit: U.S. v. Gabinskaya
Corporations, Fraud, Conspiracy, Insurance
In state litigation involving no-fault insurance, courts may look beyond the formal indicia of ownership when attempting to determine whether a corporation has been fraudulently incorporated.
Testimony relating to the conspirators' legal advice doesn't speak to knowing participation in the scheme.
U.S. v. Gabinskaya
Second Circuit: U.S. v. Rivernider
FRCrimP, Crim, Fraud, White Collar, Sentencing
No abuse of discretion in denial of permission to withdraw guilty plea, given signed admissions and extensive colloquy.
Mens rea for the fraud was intentionally withholding information, not the desire to harm the victims.
Where claims of counsel conflict are conclusory, there is no right to new counsel for the filing of a motion to withdraw the guilty plea.
In sentencing, court appropriately considered all loans to be tainted by the fraudulent operation, despite the lack of explicit linkage of fraud to each of the loans.
Sentencing generally affirmed.
U.S. v. Rivernider
Second Circuit: United States v. Bouchard
Crim, White Collar, Fraud
Deceiving a lender which is not federally insured without the intent to deceive its federally insured parent does not violate the statute prohibiting lying to federally insured lenders.
A lender is not, for purposes of the statute, categorically a bank.
In a conviction for conspiracy, absent a special verdict indication of reliance on a particular theory, reversal of an overt act under one theory still allows the conviction to stand, given the other possible overt acts.
No abuse of discretion in denial of new trial for alleged perjury, given deft's successful cross of witness.
United States v. Bouchard
Ninth Circuit: USA V. NICHOLAS LINDSEY
Fraud
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Seventh Circuit: USA v. Saliou Mbaye
Fraud, Crim, Sentencing
Testimony of co-defts and lack of tax reporting established sufficient evidence for bank fraud.
Obstruction enhancement appropriate where deft sticks to alibi on the stand.
Within guidelines sentence substantively upheld.
USA v. Saliou Mbaye
Seventh Circuit: ACF 2006 Corp v. Timothy Devereux
Easterbrook, Contract, Fees
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Quantum meruit adjustment to factual findings at trial.
Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest. (Possibly. Confusing.)
Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.
ACF 2006 Corp v. Timothy Devereux
Seventh Circuit: Carlos G. Rocha v. J. Gordon Rudd, Jr.
FRCP, Legal malpractice, Fraud
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Tenth Circuit: United States v. Holloway
Ineffective Assistance, Fraud, Sentencing
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Seventh Circuit: Frederick Grede v. Bank of New York
Bankruptcy/fraud
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
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