Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in White Collar Crime

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Defendant, then a 67-year-old retired engineer turned tax preparer, was convicted of 32 federal offenses arising from a tax fraud scheme. Defendant was sentenced to fifteen years in prison and ordered to pay just over $500,000 in restitution. The court held that 18 U.S.C. 1546(a) does not apply to U.S. passports or U.S. passport cards. Thus, the district court erred by denying defendant’s motion for judgment of acquittal as to Counts 33 and 34. The court concluded that the district court clearly erred in holding that the conduct at issue in the second case, where defendant was not convicted, was sufficiently “related” to the conduct at issue in the first case to warrant inclusion of losses in the second case in the order for restitution pursuant to 18 U.S.C. 3663A(a)(2). Consequently, the court concluded that although ordering restitution for related conduct that did not result in a conviction was within “statutory bounds,” the order for restitution, here, was an abuse of discretion. The United States concedes, and the court agreed, that the wrong version of USSG 2B1.1(b)(2)(C) was used and that this error requires remand to resolve the determination of the number of victims; the primary flaw with the “intended loss” finding, here, is that the district court improperly considered the intended loss from the second case, even though the second case did not involve “relevant conduct,” under USSG 1B1.3(a)(2); the United States nowhere identifies evidence establishing - or identified by the district court as the basis for a finding - that specific challenged amounts of intended loss in the first case were, in fact, actual or intended losses; the district court erroneously applied the identity theft specific offense characteristic under USSG 2B1.1(b)(11)(C); the district court properly imposed the “sophisticated means” enhancement under USSG 2B1.1(b)(9)(C); because the court vacated defendant's conviction on Count 33, no cross-reference is applicable and the district court must recalculate the sentence on remand; the district court properly applied the enhancement for “abuse of trust” under USSG 3B1.3; and the district court properly applied an "obstruction of justice" enhancement under USSG 3C1.1. Accordingly, the court affirmed in part, reversed in part and remanded. View "United States v. Thomsen" on Justia Law

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Defendant conspired with former Korn/Ferry employees whose user accounts had been terminated, but who nonetheless accessed trade secrets in a proprietary database through the back door when the front door had been firmly closed. The court concluded that defendant knowingly and with intent to defraud Korn/Ferry blatantly circumvented the affirmative revocation of his computer system access. This access falls squarely within the Computer Fraud and Abuse Act's (CFAA), 18 U.S.C. 1030, prohibition on access “without authorization.” The court concluded that “without authorization” is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. Therefore, the court affirmed defendant’s conviction for violations of section 1030(a)(4) of the CFAA. The court also affirmed defendant's convictions under the Economic Espionage Act (EEA), 18 U.S.C. 1832(a)(2) -(a)(4), for downloading, receiving and possessing trade secrets in the form of source lists from the former employer's database. The court vacated in part and remanded the restitution order for reconsideration of the reasonableness of the attorneys’ fees award. View "United States v. Nosal" on Justia Law

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Defendant was convicted of charges related to her participation in an extensive mortgage-fraud conspiracy and was ordered to pay more than $2 million in restitution and to forfeit more than $100 million. The court rejected defendant's contention that the restitution amount was not supported by adequate evidence and that it violated the Eighth Amendment where the district court explicitly stated that it would calculate loss through the method defendant advocates. Defendant's bare speculation on appeal that this process was somehow deficient does not approach her burden of demonstrating clear or obvious error in the court’s restitution calculations. Without error in the loss calculation, defendant's Eighth Amendment claim fails. The court rejected defendant's challenges to the order of monetary forfeiture imposed at sentencing, concluding that defendant's bare assertion that the district court needed more evidence to make an accurate accounting of the loan proceeds falls far short of her burden of demonstrating clear or obvious error in the district court’s calculation.Furthermore, it is not anomalous to order her jointly and severally liable, along with the other participants in that conspiracy, for the total amount of money that was illegally gained by the conspiratorial enterprise. Finally, the court concluded that the order of forfeiture is punitive and therefore subject to Eighth Amendment excessiveness review. The court vacated the order with respect to Count 1 and remanded for reconsideration of that amount in light of the Eighth Amendment's Excessive Fines Clause. The court affirmed the order of restitution and the amounts of forfeiture ordered on defendant's convictions for Counts 10, 11, 13, and 14. View "United States v. Beecroft" on Justia Law

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Defendant appealed his conviction and sentence for interfering with the administration of the tax laws in violation of 26 U.S.C. 7212, presenting fictitious financial instruments in violation of 18 U.S.C. 514, and presenting false claims to the United States in violation of 18 U.S.C. 287. The court concluded that the evidence was sufficient to preclude a judgment of acquittal on the section 514 counts. Because, however, it was not so overwhelming that it negated the prejudice flowing from the lack of any instruction that the financial instruments in question had to be issued “under the authority of the United States,” the court remanded for a new trial. The court also concluded that it was not error for the district court not to instruct the jury that an attempt to reduce tax liability is not a “claim” within the meaning of section 287; the section 7212 charge was timely; the court agreed with the Fourth Circuit that a charge under section 7212 is timely so long as it is returned within six years of an affirmative act of evasion, even if the evasion first began outside the period; the section 7212(a) charge was not duplicitous; and, even if the government’s rebuttal summation had been improper, it was harmless. Accordingly, the court affirmed in part, vacated in part, and remanded. View "United States v. Murphy" on Justia Law

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Defendant appealed his convictions on twenty-four counts of wire fraud, seven counts of money laundering, and one count of investment-adviser fraud. The court concluded that the district court did not abuse its discretion in barring defendant's expert witness from testifying and, even if the district court did not abuse its discretion, the error was harmless; the district court did not abuse its discretion in admitting testimony regarding defendant's status as a fiduciary where nothing in the record indicates that testimony and argument regarding defendant's fiduciary status impermissibly infected his prosecution, and any concerns about the jurors’ equating violations of fiduciary duty with criminal liability were put to rest by the district court’s careful instructions on the elements of the offenses and the absence of reference to breach of fiduciary duty as a consideration in determining guilt; the district court did not violate defendant's Fifth Amendment rights when it declined to strike Count 33 from the indictment; and there is no cumulative error. Accordingly, the court affirmed the judgment. View "United States v. Spangler" on Justia Law

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Defendant, a contractor, appealed his conviction of two counts of conversion and misapplication of funds from a tribal organization, in violation of 18 U.S.C. 1163. Defendant's conviction stemmed from his involvement in projects he performed for the Navajo Nation. The court held that, for purposes of 18 U.S.C. 1163, funds paid from an Indian tribal organization to a contractor continue to be “property belonging to any Indian tribal organization,” as long as the tribal organization maintains sufficient supervision and control of disbursed funds and their ultimate use. In this case, the court concluded that a reasonable jury could find (a) that the funds misappropriated or converted by defendant belonged to a tribal organization, even if the funds were considered reimbursement for work already completed; and (b) that NHA had sufficient supervision and control of the Native American Housing Assistance and Self-Determination Act (NAHASDA), 25 U.S.C. 4101-4212, funds. The court found that there was sufficient evidence to convict defendant of misappropriating tribal funds. The court further concluded that the district court did not err by requiring a forensic auditor to be certified as an expert witness and compelling expert disclosures, and the district court did not err by allowing the auditor's summary charts to be admitted into evidence. Finally, the district court did not commit error in instructing the jury and the district court did not err in applying two sentencing enhancements. Accordingly, the court affirmed the judgment. View "United States v. Aubrey" on Justia Law

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Defendant, convicted of violating the Sherman Antitrust Act, 15 U.S.C. 1, appealed the district court's denial of a motion for a new trial and request for an evidentiary hearing. The court held that defendant was not entitled to a new trial or evidentiary hearing based on a juror’s affidavit alleging that other jurors discussed the evidence against him and made up their minds about his guilt before the start of deliberations. The court rejected defendant's contention that Rule 606(b) provides leeway for a court to delve into the internal affairs of the jury simply because the discussions took place before deliberations commenced. Accordingly, the court affirmed the judgment of the district court. View "United States v. Shiu Lung Leung" on Justia Law

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Defendant, a registered investment advisor and securities agent, appealed his conviction and sentence for wire fraud and money laundering. Defendant's conviction stemmed from his involvement in a scheme to defraud his clients. The court concluded that defendant's Sixth Amendment right to counsel was violated by the district court’s decision to proceed with victim allocution in the absence of trial counsel during a portion of defendant’s critical sentencing stage. The court concluded that the denial of counsel during a portion of the allocution phase of the sentencing proceeding was structural error, that the error was complete when the right to counsel was denied, and that no additional showing of prejudice was required. The court also concluded that the district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea. Because the trial court committed structural error by proceeding with victim allocution while defense counsel was not present, and because the victim’s statements were highly significant in the judge’s sentencing consideration, reassignment to a different district judge is advisable to preserve the appearance of justice. Accordingly, the court affirmed the conviction, vacated the sentence, and remanded for resentencing. View "United States v. Yamashiro" on Justia Law

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Defendant was convicted and sentenced for conspiracy to obstruct justice, accessory after the fact to mail fraud and securities law violations, altering documents to influence a federal investigation, and aiding and abetting false testimony at an SEC deposition. A panel of the Ninth Circuit affirmed, holding (1) the district court did not err at sentencing by applying both the “Broker-Dealer” enhancement and the “Special Skill” enhancement under the Sentencing Guidelines; (2) the district court did not err in calculating loss and victim amounts, as required under the Sentencing Guidelines; (3) Defendant was competent to waive his right to a jury trial, and his waiver was knowing and intelligent; and (4) the district court did not plainly err in (a) excluding a non-lawyer’s testimony reciting facts and the legal conclusion that Defendant did not break the law; (b) determining that the district court was capable of understanding an expert’s opinion regarding Defendant’s professional and ethical duties as an attorney; and (c) admitting coconspirator nonhearsay testimony. View "United States v. Tamman" on Justia Law

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Defendant appealed his conviction for making excessive campaign contributions, and making contributions in the name of another. The court concluded that the district court did not err in refusing defendant's proffered jury instructions that an unconditional gift of funds cannot violate 2 U.S.C. 441f if the funds have become the property of the donors under Nevada law because defendant's theory is not supported by law; to the extent defendant's theory is that the unconditional nature of the gifts prevented him from forming the necessary intent, the instructions given by the district court adequately encompassed his theory; defendant's claim that the individual contribution limits of section 441a and the prohibition on conduit contributions in section 441f violate defendant's free speech and association rights under the First Amendment is foreclosed by Buckley v. Valeo; the court rejected defendant's claims of evidentiary errors; and the evidence was sufficient to support defendant's conviction. Accordingly, the court affirmed the judgment of the district court. View "United States v. Whittemore" on Justia Law