Fifth Circuit: USA v. Croft

 Listing qualified staff members who never showed up to work for purposes of a certification by a state agency was a violation of the identity theft statute, as the misrepresentation was at the crux of the fraud.

CONCURRENCE:

("Dubitante") The fraudulent aspect wasn't in the identities of the staff members, but in their qualifications.

USA v. Croft

Second Circuit: United States v. Calk

 Bank officer's approval of loans in hopes of a Presidential appointment was illegal, as, for purposes of the statute, corrupt conduct need only be motivated at least in part by improper motives, and commercial decisions that might offer legitimate benefits are not insulated from the inquiry.  The thing of value at issue need not have pecuniary value. The value of the intangible thing at issue can be determined to exceed the statutory minimum by establishing its value to the deft.

The grand jury subpoena of a third party wasn't improper; although the suspicious timing was enough to shift the burden, the subsequent superseding indictment, among other things, established its legitimacy.

United States v. Calk

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

Eighth Circuit: United States v. Carlos Luna

 

Given the specific misrepresentations made, and the fact that insurers would have otherwise more carefully scrutinized the clinic, sufficient evidence for a scheme or artifice to defraud, despite the fact that some percentage of the claims were legitimate.

Restitution, and sentencing calculations should have been offset for the percentage of treatments that were medically necessary.  Forfeiture, though, looks to the gross proceeds of the criminal activity and did not have to be offset.

United States  v.  Carlos Luna

Seventh Circuit: USA v. Daniel Stewart

No plain error in prolongation of traffic stop, given the minimal length of traffic stop.  Sufficient evidence for money laundering, given illicit source of funds.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-05/C:16-4105:J:Rovner:aut:T:fnOp:N:2212702:S:0

First Circuit: US v. Valdes-Ayala

Sufficient evidence for bankruptcy fraud, as the petitions filed were the bare minimum to get the clients released from jail.

Sufficient evidence for wire fraud, as Microsoft has no email servers in Puerto Rico.

Sufficient evidence for identity fraud, as victims testified that they didn't sign many of the documents.

No constructive amendment of indictment alleging defrauding of creditors using the court, as the court filings were identified as the fraudulent element, and the offense was the deception in the filings.

No plain error in not sending the full offense-specific jury instruction into the deliberations room; no plain error in omission of materiality from fraud instruction.

Authorized use of names and power of signature is without lawful authority when used unlawfully.

Plain error in use of superseded sentencing guidelines.

Bankruptcy court is a legitimate recipient of restitution order.

http://media.ca1.uscourts.gov/pdf.opinions/16-1002P-01A.pdf

Fifth Circuit: Stephanie Odle v. Wal-Mart Stores, Incorporated

Dissent from denial: ln the caselaw, where parties voluntarily dismiss the action, the court does not have sufficient authority over the case to consider whether other intervenors should be added.

Statement in support of denial of en banc: Minor exceptions from exigency.


http://www.ca5.uscourts.gov/opinions/pub/16/16-10347.CV1.pdf

Third Circuit: USA v. Chaka Fattah, Sr.

Trial court judge did not abuse discretion in interviewing jurors in the course of deliberations about the conduct of another juror.

No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."

Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.

Formal proposal for Congress to fund a specific project was a sufficiently official act.

Sufficient evidence for RICO conspiracy convictions.

&c, &c...

http://www2.ca3.uscourts.gov/opinarch/164397p.pdf

Fourth Circuit: US v. Anthony Burfoot

Sufficient evidence for bribery.  As the scheme, not state law, dictated the timing of tax payments sent online, sufficient evidence for wire fraud counts.

As payments were part of a continuous scheme, counts referencing earliest payments and Hobbs Act violation are not barred by the statute of limitations.

Indictment not amended by court's instruction during deliberations that the amount specified in the count was not an element of the offense.

Statement sufficiently material for the purposes of perjury where it is within the scope of the alleged conspiracy and casts doubt on the veracity of a key witness.

No error of denial of mistrial after speculative characterizations of fraud elicited on direct, given curative instruction and overwhelming amount of other evidence.

No abuse of discretion in barring consideration of newly discovered evidence of a witness' cognitive impairment.

Jury is presumed to follow the judge's instructions, so a five-hour deliberation that acquitted on two of the counts was a valid deliberation.

http://www.ca4.uscourts.gov/opinions/174266.P.pdf

Second Circuit: United States v. Sampson

As the embezzlement statute requires conversion with intent, summary judgment for the deft based on the statute of limitations was error -- the intent to deprive can arise after the inappropriate withholding.  Discovery under the FRCrimPro does not require the government to make a proffer of when such intent arises.

Claims about the theory of the made during liminal proceedings do not estop the government's right to make other assertions at trial.  Theory of indictment claiming that the statewide state supreme court was a single agency is sufficiently supported by state court rulings and the state constitution.  Where the appointment as referee has no firm ending date, whether the deft was acting in that capacity presents a question for trial.

http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/doc/15-2869_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/hilite/

Sixth Circuit: United States v. Daniel Sexton

Sentencing bump for commission of crime while under sentence was appropriate by the terms of the guidelines, since deft was on summary probation in contemplation of dismissal following a nolo contendere plea.

Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.

Within guidelines sentence substantively reasonable.

Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets.  Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.

No plain error in court's acceptance of charge-off methodology and costs in the PSR.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf

Eighth Circuit: US v. Kwame Askia

Federal embezzlement statute is not a continuing offense; once the threshold has been reached, the offense is complete.  For purpose of the stature of limitations, however, so long as the limit is reached within the relevant timeframe, the fact that the offense began earlier doe not bar the indictment.

No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.

Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.

Sufficient evidence.

http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf

Second Circuit: Giunta, et al. v. Dingman, et al.

Domestic transaction was sufficiently irrevocable to establish culpability under the statute, despite the fact that the transaction would later have to be cleared by foreign banks -- any possible cancellation would come from the closing entity, not the counterparty.

Given the substantial connections to the US, including citizenship of the defts and the place of the transaction, the ties are sufficient to overcome the presumption against extraterritoriality.

http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/doc/17-1375_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/hilite/

DC Circuit: US v. Calvin Stoddard

Description of the investigation to this point and agent's general expertise established sufficient necessity for the wiretap order.

Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.

Sufficient evidence for conspiracy, despite unreliable witness. 

Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.

Each member of the conspiracy must have sufficient knowledge or foreseeable understanding  of drug amounts triggering mandatory minimums for those minimums to apply.  Circuit split flagged.

https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf

Fifth Circuit: Gail McClendon v. USA

Regardless of the ultimate burden at trial, a deft's reasonably supported assertion that less than the full amount of taxes due was available for use in the company's accounts presents a genuine issue of material fact for trial.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf

Fifth Circuit: USA v. Richard Evans

No plain error in conviction where the procedures of the medical practice were the subject of testimony and the link to the individual cases in the indictment was merely the patients' medical files.

Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.

Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.

No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.

Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.

Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.


http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf

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: 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. DAVID NOSAL

Computers, White Collar

Federal statute barring unauthorized access to computers refers to the authorization of the computer's owner, not the process of technical authorization.  Affirmative revovcation of access to the system precluded use of the system by any other means.

Trade secrets can be composed of publicly available information.

Error to award the corporate victim attorneys' fees, given brief actual duration of misconduct.

Dissent - It's a hacking law.


USA V. DAVID NOSAL