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

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

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

Defendant was convicted of making false, fictitious, and fraudulent claims to the United States Treasury, assisting in the filing of false tax returns, criminal contempt, and mail fraud. On appeal, defendant challenged his convictions and the district court's supervised release conditions. The court concluded that the district court did not commit reversible error under the Sixth Amendment when it did not prompt defendant to present a closing argument to the jury and where defendant simply chose to remain silent; nothing in Herring v. New York or the court's precedents gives a self-represented defendant a right to be affirmatively and individually advised that he or she has a right to present a closing argument; Herring and the court's precedent held that a court may not prevent a litigant from making a closing argument; the government provided sufficient evidence to prove that defendant assisted another in the filing of fraudulent tax returns; but the district court did abuse its discretion by requiring defendant to abstain from alcohol and drug consumption and participate in treatment as conditions of his supervised release where the record contains no evidence showing that defendant abused alcohol or other substances and the district court made no relevant findings during the sentencing hearing. Accordingly, the court affirmed in part, vacated in part, and remanded. View "United States v. Bell" on Justia Law

Defendant pleaded guilty to wire fraud and making a false statement on a loan application. On appeal, defendant challenged the district court's imposition of a 16-level increase to defendant's base offense level based on that court's calculation that the banks suffered a loss of over a million dollars. The court held that, in a mortgage fraud case, loss under U.S.S.G. 2B1.1(b) is calculated in two steps. First, calculating actual or intended loss allowed for a reasonable foreseeability analysis although the actual loss generally consisted of the entire principal of the fraudulently obtained loan. Second, crediting against the actual or intended loss the value of any collateral recovered or recoverable, did not permit a foreseeability analysis. Rather, the value of the collateral was credited against the amount of the loss calculated at the first step, whether or not the value of the collateral was foreseeable. The court affirmed the sentence because the district court followed this rule in calculating the loss attributable to defendant as $1,033,500. View "United States v. Morris" on Justia Law

Defendant was convicted of five counts of bank fraud and two counts of mail fraud. The court held that mailings designed to avoid detection or responsibility for a fraudulent scheme fell within the mail fraud statute when they were sent before the scheme was completed. In order to determine when a scheme is completed, the court looks to the scope of the scheme as devised by the perpetrator. In this case, a reasonable jury could have found that defendant sent the September 16 letter prior to the scheme's completion. Accordingly, the court rejected defendant's argument that his conviction on count 2 must be reversed because the scheme was completed before the September 16 letter was mailed. The court also rejected defendant's alternative argument that the September 16 letter could not support a conviction for mail fraud because it was sent after the fraud was uncovered. Therefore, sufficient evidence supported defendant's mail fraud conviction on count 2 and the court affirmed the conviction. Further, the court affirmed the district court's application of a 2-level sentencing enhancement for making a misrepresentation during the course of a bankruptcy proceeding under U.S.S.G. 2B1.1(b)(9)(B) and application of a 2-level enhancement for using sophisticated means under U.S.S.G. 2B1.1(b)(10)(C). The court held, in accord with the government's concession, that the district court plainly erred by including $44,715.21 in restitution for fraudulent credit cards and $1,851.38 in restitution for wage overpayments that were not part of the offenses of conviction and by failing to note the waiver of interest on restitution on the judgment. View "United States v.Tanke" on Justia Law

Defendants were convicted of one count of conspiracy to commit health care fraud and three counts of health care fraud. On appeal, defendants challenged their sentences. The court held that, in health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes. If not rebutted, this evidence shall constitute sufficient evidence to establish the intended loss by a preponderance of the evidence. However, the parties may introduce additional evidence to support arguments that the amount billed overestimated or understated the defendant's intent. In this instance, the court vacated defendants' sentences on the issue of intended loss because the record left the court uncertain as to what the district court understood the law to be with respect to calculating intended loss for sentencing purposes and there was evidence suggesting that defendants may have been aware that Medicare only payed a fixed amount. When viewed in conjunction with the evidence that defendants were the only two named physicians on the clinic's sign, the documents were sufficient to support the district court's finding that Defendant Popov's bills to Medicare were foreseeable to Defendant Prakash. The court vacated the sentences and remanded for resentencing. View "United States v. Popov" on Justia Law

Defendant appealed his conviction for aggravated identity theft. At issue on appeal was whether a counterfeit paper check that bears a victim's true name, bank account number, and routing number was a "means of identification of another person" for the purposes of the aggravated identity theft statute, 18 U.S.C. 1028A, 1028(d)(7). The court concluded that, under the plain statutory language of the aggravated identity theft statute, the names and banking numbers on defendant's counterfeit check were a "means of identification." Accordingly, the court affirmed the judgment of the district court. View "United States v. Alexander" on Justia Law

Defendant was convicted of twelve felonies stemming from her work as a tax preparer for various clients. The court concluded that the district court did not err in denying defendant's motion for judgment of acquittal as to Counts 1, 2, 4, and 5 of the superseding indictment where there was sufficient evidence for a rational jury to conclude that defendant's fraud scheme affected the banks within the meaning of 18 U.S.C. 1343, regardless of whether the banks ultimately suffered any actual loss; the predicate offenses for Counts 16 and 17 happened after 18 U.S.C. 1028A was enacted and, therefore, the jury was not wrong in convicting defendant of aggravated identity theft while relying on the predicate wire fraud offenses; the district court did not err in allowing defendant's former attorney to testify at the sentencing hearing where no attorney-client privilege was implicated; and the district court did not clearly err in calculating the loss and restitution amounts. Accordingly, the court affirmed the judgment. View "United States v. Stargell" on Justia Law

Defendant appealed the district court's denial of his 28 U.S.C. 2255 federal habeas corpus petition based upon the Supreme Court's decision in Skilling v. United States, which narrowed the scope of the honest services fraud theory. Defendant,a former attorney and trustee of private trusts, pleaded guilty to honest services fraud. The government conceded that defendant was actually innocent of honest services fraud in light of Skilling, which confined the reach of the offense to cases of bribes and kickbacks. The court vacated the district court's dismissal of defendant's honest services fraud claim where no evidence suggested that defendant either engaged in bribery or received kickbacks. View "United States v. Avery" on Justia Law

Defendant was charged with fourteen counts of wire fraud in violation of 18 U.S.C. 1343 stemming from his scheme to defraud his employer. On appeal, defendant contended that the district court erred in denying his motions for judgment of acquittal, a new trial, and for an arrest of judgment. The court rejected defendant's argument that routine transmissions occurring during the interbank collection process were not made for the purpose of executing a scheme to defraud or in furtherance thereof; the district court erred in the jury instructions; there was insufficient evidence; and the wire fraud statute was unconstitutional. Accordingly, the court affirmed the conviction and sentence. View "United States v. Jinian" on Justia Law