by
The Fifth Circuit affirmed the district court's denial of claimants' motion to release property under civil forfeiture law. The property at issue stemmed from the sale of synthetic cannabinoids that were a controlled substance or controlled substance analogues intended for human consumption. Determining that the court had jurisdiction over the appeal, the court held that, assuming arguendo, Supplemental Rule G(2)(f) applied in reviewing pretrial property restraints outside the motion-to-dismiss context, the district court used the right standard. In this case, the district asked whether the government's complaint "demonstrated with sufficient particularity for the current stage of the proceedings that defendants intentionally commingled tainted funds with untainted funds for the purpose of facilitating the alleged money laundering.” The court held that the facts here were sufficient to support this standard. The court also held that probable cause for forfeiture existed based on the charge for conspiracy to commit mail and wire fraud. View "United States v. $472,871.95 in Funds Seized" on Justia Law

by
Petitioner William Avignone, at the time of this appeal, was in custody awaiting trial on charges of multiple counts of grand theft of personal property and fraud in connection with the offer, purchase, or sale of security. As part of a plea deal, Avignone pled guilty to three counts of fraud and two counts of grand theft while the prosecution dismissed the remaining counts. The trial court sentenced him to five years four months to be served in the custody of the sheriff. Before December 2017, he had been out on bail for four years. During that time, he made all court appearances and did not engage in criminal activity. Avignone appealed his sentence, arguing, among other things, the court abused its discretion in denying probation. The Court of Appeal rejected that contention, but allowed Avignone to withdraw his guilty plea. He did, and the superior court held a bail review hearing. After multiple hearings, the court increased Avignone's bail to $300,000. Avignone appealed, arguing the court abused its discretion in increasing his bail and setting it at an amount that violated In re Humphrey, 19 Cal.App.5th 1006 (2018), the Eighth Amendment of the United States Constitution, and article 1, section 12 of the California Constitution. To this point the Court of Appeal agreed that the sentencing court abused its discretion. As such, the court vacated the superior court's bail determination, and directed reconsideration of the amount of bail. View "In re Avignone" on Justia Law

by
Petitioner Peyman Heidary (Heidary) allegedly owned and oversaw a network of medical clinics to generate fraudulent billings to workers’ compensation and insurance carriers. A non-attorney, he also allegedly controlled the day-to-day operations of various law firms, including California Injury Lawyers (collectively, the law firm.). He allegedly controlled or directed hiring and firing, legal decision making, and income flow to and from the law firm. Codefendants (and petitioners in a related writ case discussed below) Abramowitz, a lawyer, and Solis allegedly assisted Heidary in these operations. Under the alleged fraud scheme, injured workers appeared at the law firm, which would fill out boilerplate paperwork and, on Heidary’s order, direct the workers to one of his clinics to begin treatment. Each provider would fill out a “ ‘super bill,’ ” describing services rendered, which would then go to support staff to review compliance with Heidary’s orders. They would forward the superbill to a medical billing company. Those companies would generate a form to start the claim process. The billing companies contracted with each provider to bill for services, on Heidary’s order, including sometimes by forgery. Payment came from two sources: workers’ compensation insurers and third-party accounts-receivable buyers. The defendants were indicted by grand jury on conspiracy, making false or fraudulent claims for payment of health care benefits, knowingly making false and fraudulent material representations for payment of workers' compensation, money laundering, forgery, and unlicensed practice of medicine. In Petitioner challenged challenges the trial court’s denial of his motion to set aside the indictment pursuant to Penal Code section 995(a)(1)(B). Finding no reason to disturb the indictment, the Court of Appeal denied the petition. View "Heidary v. Superior Court" on Justia Law

by
The First Circuit affirmed Defendant’s sentence for wire fraud and theft in connection with health care, holding that Defendant’s upwardly variant sentence was both procedurally and substantively reasonable. Defendant pled guilty to one count of theft in connection with health care and one count of wire fraud. The district court imposed an upwardly variant sentence of sixty months’ imprisonment on each count of conviction, to run concurrently and to be followed by three years of supervised release. The court also ordered Defendant to forfeit $394,300 and to pay $590,296 in restitution to the victim. The First Circuit affirmed, holding that Defendant’s sentence was neither procedurally unreasonable nor substantively unreasonable. View "United States v. Gierbolini-Rivera" on Justia Law

by
George was charged with conspiracy, 18 U.S.C. 371, and a Medicare‐fraud kickback scheme, 42 U.S.C. 1320a-7b(b)(1) based a scheme whereby George received payments of $500 per person from Rosner Home Health Care, for each Medicare patient that she referred to it. Two owners and an employee of Rosner (Tolentino, Magsino, and Hernal) pled guilty before trial. The district court found George guilty and sentenced her to six months of imprisonment. The Seventh Circuit affirmed, rejecting George’s arguments that there was insufficient evidence to support the conviction and that the court erred in failing to limit the cross‐examination of George to matters within her knowledge as a layperson. Hernal had cooperated in the investigation, so the prosecution’s evidence included recordings of the two discussing the illegality of the scheme and establishing the referrals and payments, in cash or check, plus bank records of George’s deposits, and referral logs. The district court properly allowed cross‐examination as to the book that George raised in her direct examination and which she introduced into evidence and properly allowed questioning about her knowledge of the illegality of referral payments. A defendant can be asked about her knowledge or state of mind: a question which seeks factual information, not a conclusion as to its legal significance. View "United States v. George" on Justia Law

by
Fattah, a prominent fixture in Philadelphia politics, financially overextended himself in both his personal life and his professional career during an ultimately unsuccessful run for mayor. Fattah received a substantial illicit loan to his mayoral campaign and used his political influence and personal connections to engage friends, employees, and others in an elaborate series of schemes aimed at preserving his political status by hiding the source of the illicit loan and its repayment. Fattah and his allies engaged in shady and, at times, illegal behavior, including the misuse of federal grant money and federal appropriations, the siphoning of money from nonprofit organizations to pay campaign debts, and the misappropriation of campaign funds to pay personal obligations. Based upon their actions, Fattah and four associates were charged in a 29-count indictment. Each was convicted on multiple counts. The Third Circuit affirmed in part, rejecting various challenges to evidentiary rulings, jury instructions, and the sufficiency of the evidence, but vacated certain convictions involving jury instructions concerning the meaning of the term “official act” as used in the bribery statute and the honest services fraud statute. In light of the Supreme Court’s 2016 “McDonnell” decision, released the week after the jury verdict, the instructions were incomplete and erroneous. View "United States v. Fattah" on Justia Law

by
The Fourth Circuit affirmed defendant's conviction of wire fraud, extortion under color of official right, conspiracy to commit such offenses, and two counts of perjury. The court held that the district court did not err by denying defendant's motion for acquittal where there was sufficient evidence to support the four convictions arising from his bribery schemes and the honest-services wire fraud convictions; the substantive Hobbs Act extortion conviction was not duplicitous and there was no constructive amendment; and there was sufficient evidence to support the perjury convictions. Finally, the district court did not err in denying defendant's motions for a new trial based on inadmissible testimony, newly discovered evidence, and the jury's failure to fully deliberate. View "United States v. Burfoot" on Justia Law

by
In February 2016, Defendant Ricky Williams pled guilty to tax fraud relating to his preparation of federal income-tax returns for third-party clients for the 2010 and 2011 tax years. In his plea agreement, he agreed to pay restitution. After pleading guilty, he was initially released on bond pending sentencing. However, his release was revoked after the court discovered that he had been violating the terms of his release by again engaging in tax preparation activities for someone other than himself or his spouse. The probation officer who prepared his Presentence Investigation Report “determined that the defendant lied about his income, assets, and liabilities” to the probation officer. Among other things, the probation officer discovered several undisclosed financial transactions that Defendant had conducted with someone else’s social security number, and an attempt to unfreeze a bank account that contained approximately $37,000. The bank contacted the IRS. This lead to a sentence of thirty months in prison and an increased restitution amount to the IRS. A few months after Defendant’s sentencing, the government filed an application for post-judgment writ of garnishment against the frozen bank account. The bank objected on the grounds that the account was subject to “a prior internal USAA Federal Savings Bank hold from its Fraud Department." A magistrate judge concluded the government could not seek garnishment. The district court declined to accept the magistrate judge's recommendation pursuant to the terms of defendant's earlier restitution agreement. The Tenth Circuit found no error in the district court’s conclusion that the government was entitled to garnish Defendant’s bank account to obtain partial payment of the amount then-currently due in restitution. View "United States v. Williams" on Justia Law

by
The Fifth Circuit affirmed defendant's conviction of conspiracy to commit bank fraud. Defendant owned and operated a company that originated loans insured by the FHA. The court held that signing the loan application in the Eastern District established venue there. The court also held that there was no constructive amendment or variance because there was no difference between the jury concluding that the supporting documents were false and it deciding that the application contained those same falsehoods; the evidence supported the verdict where it did not matter that the loan application did not expressly affirm the veracity of the supporting documents; and the government's closing argument was not improper where the prosecution did not err in telling the jury that it had to "decide the truth," which after all was what the "verdict" means. View "United States v. Brown" on Justia Law

by
Austin Ray was convicted by jury convictions for one count of conspiracy to defraud the United States, five counts of aiding in the preparation of a false tax return, and two counts of submitting a false tax return. Ray argued on appeal: (1) the government violated the Interstate Agreement on Detainers Act (IAD) of 1970; (2) the government engaged in vindictive prosecution; (3) the district court violated his rights under the Speedy Trial Act (STA) of 1974; (4) the government violated his due-process rights by destroying certain evidence; and (5) the district court constructively amended the indictment. The Tenth Circuit affirmed in all respects, finding: (1) the government never lodged a detainer against Ray, meaning the IAD didn’t apply; (2) Ray established neither actual nor presumptive vindictiveness; (3) Ray’s STA argument was waived for failing to raise it below; (4) the evidence at issue lacked any exculpatory value, and even if the evidence were potentially useful to Ray’s defense, the government didn’t destroy it in bad faith; and (5) the district court narrowed, rather than broadened, the charges against Ray. View "United States v. Ray" on Justia Law