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

The City of Almaty, in Kazakhstan, filed suit against defendant and his family under the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging that they engaged in a scheme to defraud the city of millions of dollars. The City claimed that it was forced to spend money and resources in the United States to trace where its money was laundered. The district court dismissed the City's claim on the basis that it failed to state a domestic injury pursuant to the Supreme Court's recent decision in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016).The Ninth Circuit held that the City failed to state any cognizable injury other than the foreign theft of its funds, and its voluntary expenditures were not proximately caused by defendants' acts of money laundering. In this case, the City's expenditure of funds to trace its allegedly stolen funds is a consequential damage of the initial theft suffered in Kazakhstan and is not causally connected to the predicate act of money laundering. View "City of Almaty v. Khrapunov" on Justia Law

The Ninth Circuit affirmed defendant's conviction of wire fraud and filing false tax returns. The jury found that defendant embezzled over $300,000 from the company for which he served as managing member and president.The panel overruled its prior decisions in light of the Supreme Court's intervening decision in Shaw v. United States, 137 S. Ct. 462 (2016), and held that wire fraud under 18 U.S.C. 1343 requires the intent to deceive and cheat, and that the jury charge instructing that wire fraud requires the intent to "deceive or cheat" was therefore erroneous. However, in this case, the panel held that the erroneous instruction was harmless. The panel noted that it was deeply troubled by an Assistant U.S. Attorney's disregard for elementary prosecutorial ethics, but that the misconduct did not entitle defendant to any relief. The attorney here had a personal and financial interest in the outcome of the case. The panel wrote that as soon as the Department of Justice became aware of the impropriety, it took every necessary step to cure any resulting taint, including turning over the entire prosecution of the case to disinterested prosecutors from the Southern District of California. Finally, the panel found defendant's remaining arguments to be without merit. View "United States v. Miller" on Justia Law

The Ninth Circuit affirmed defendant's convictions for health care fraud where the evidence of actual knowledge was overwhelming, and thus the court did not need to determinate whether the district court erred in giving a deliberate ignorance instruction on the knowledge element of health care fraud. Furthermore, the panel rejected defendant's arguments regarding the sufficiency of the illegal remunerations convictions.However, the panel reversed the aggravated identity theft convictions, because defendant did not "use" the patients' identities within the meaning of 18 U.S.C. 1028A. The panel also held that United States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015), foreclosed defendant's claim that the "without lawful authority" element of aggravated identity theft was not satisfied because the patients voluntarily provided their information. Finally, the panel held that the district court did not err in applying sentencing enhancements for obstruction of justice and aggravating role in the offense. The panel remanded for resentencing. View "United States v. Hong" on Justia Law

The Ninth Circuit affirmed defendant's conviction for engaging in a monetary transaction of over $10,000 derived from a specified unlawful activity, in violation of 18 U.S.C. 1956. In this case, defendant, a citizen of South Korea employed at a government-funded research institute, solicited and received payments from two seismometer manufacturers in exchange for ensuring that the research institute purchased their products, and gave the companies inside information about their competitors.The panel held that "bribery of a public official" in section 1956 is defined by that phrase's ordinary, contemporary, common meaning and is not constrained by 18 U.S.C. 201, a statute to which section 1956 makes no reference. Because the panel found the crime described in Article 129 of the South Korean Criminal Code fits comfortably within the ordinary meaning of "bribery of a public official" as used in section 1956, the panel held that the indictment was sufficient and that there was no instructional error. View "United States v. Heon-Cheol Chi" on Justia Law

Defendant was convicted of 90 counts of wire fraud and one count of conspiracy to commit wire fraud. Defendant obtained millions of dollars from victims by telling them that he needed to pay CIA and FBI agents to protect him and his family from the Mafia, and that he would pay the victims back.The Ninth Circuit vacated in part, agreeing with the parties that insufficient evidence supported defendant's convictions for Counts 81-90. The panel rejected defendant's claim that his waiver of counsel was invalid; that he was not competent to represent himself; that he was denied his Sixth Amendment right to confront the witnesses against him; that the government committed misconduct during trial; that the district court erred by not granting him a continuance; that his trial suffered cumulative error; and that the district court erred in denying his post-trial motions. Accordingly, the panel affirmed defendant's convictions as to Counts 1-80 and Count 91. The panel remanded for resentencing. View "United States v. Audette" on Justia Law

The Ninth Circuit joined the Eleventh Circuit in holding that a district court may order restitution for all losses resulting from a fraudulent scheme, even those caused by conduct occurring outside the statute of limitations. The panel affirmed the district court's order requiring defendant to pay in restitution the full amount of Medicare's losses from convictions arising from a fraudulent healthcare scheme. The panel held that the evidence was sufficient to support the district court's restitution order; the district court properly included losses relating to the overall fraudulent scheme in the restitution amount; and the district court did not plainly err by ordering restitution for the entire amount of damages caused by the fraudulent scheme as alleged in the indictment. View "United States v. Anieze-Smith" on Justia Law

Plaintiffs appealed the district court's dismissal of their amended securities fraud class action complaint, alleging that Atossa and its Chairman and CEO, Steven Quay, made a series of public statements about Atossa's breast cancer screening products that were materially false or misleading. The district court dismissed the complaint. The Ninth Circuit held that plaintiffs have properly alleged falsity and materiality as to some, but not all, of these statements. In this case, plaintiffs have sufficiently alleged that the following were materially false or misleading: (1) Quay's statement quoted in Atossa's December 20, 2012 Form 8–K filing describing the ForeCYTE Test as "FDA-cleared"; (2) Quay's statement during his interview with NewsMedical.Net that the ForeCYTE test had "gone through all of the FDA clearance process"; (3) Atossa's Form 8–K filing on February 25, 2013, giving notice of the FDA's warning letter; and (4) Quay's statement during his interview with the Wall Street Transcript that "FDA clearance risk has been achieved." Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded. View "Levi v. Atossa Genetics, Inc." on Justia Law

The Ninth Circuit joined the First, Third, Fifth, Eighth, and Tenth Circuits in holding that a victim may not directly appeal the restitution component of a criminal defendant's sentence under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A. In this case, defendants were convicted of charges related to their involvement in a scheme to receive kickbacks based on overpayments made by the Twenty-Nine Palms Band of Mission Indians. The district court ordered defendants to pay restitution to the Tribe. The Tribe subsequently challenged the "direct loss" and the "other fees" amount of the restitution order. The panel held that the Tribe had Article III standing to appeal an award under the MVRA, but that neither the MVRA nor the Due Process Clause confers a right on the Tribe to challenge restitution awards except as provided in 18 U.S.C. 3771(d)(3). Accordingly, the panel dismissed the appeal. View "United States v. Kovall" on Justia Law

Walter Liew and his company, USAPTI, challenged eight counts of conviction under the Economic Espionage Act of 1996 (EEA), 18 U.S.C. 1831(a), for charges related to their unauthorized use of DuPont chloride-route technology for producing titanium dioxide. Defendants also appealed their convictions for conspiracy to tamper with witnesses and evidence. The Ninth Circuit held that the district court did not err by giving a jury instruction regarding compilations; by rejecting a public-disclosure instruction; and by rejecting the reverse engineering and general knowledge instructions. The Ninth Circuit also held that defendants waived their right to have their argument related to the conspiracy and attempt instructions reviewed; even if this issue were reviewable, an intervening Ninth Circuit decision resolved it (United States v. Nosal). The Ninth Circuit rejected challenges to the sufficiency of trade secret evidence regarding substantive trade secret counts. However, the Ninth Circuit reversed defendants' convictions as to conspiracy to obstruct justice where the statement at issue tacked too close to a general denial to constitute obstruction of justice, and as to witness tampering where the evidence was insufficient to prove beyond a reasonable doubt that Liew intimidated, threatened or corruptly persuaded a witness. Finally, the Ninth Circuit held that the district court did not err by not requiring the prosecution to disclose rough notes of the FBI's interviews with a deceased coconspirator. Accordingly, the Ninth Circuit affirmed in part, reversed in part, vacated in part, and remanded. View "United States v. Liew" on Justia Law

Defendant pleaded guilty to one count of aggravated identity theft and aiding and abetting, and one count of possessing a false identification document with the intent to defraud the United States. On appeal, defendant challenged the district court's forfeiture order in the amount of $4,128,554.00. The court held that when a conviction for aggravated identity theft is premised on a proven or admitted violation of a predicate offense that is enumerated in the civil forfeiture statute, then forfeiture is authorized. The court concluded that the district court had statutory authority to enter a criminal forfeiture order because of defendant's conviction of aggravated identity theft, with a bank fraud predicate offense; defendant waived his Eighth Amendment claim; defendant waived his right to appeal the forfeiture order on notice grounds; and defendant waived his claim that the district court erred by not requiring the government to prove the amount of proceeds. Accordingly, the court affirmed the judgment. View "United States v. Pollard" on Justia Law