Articles Posted in U.S. 9th Circuit Court of Appeals

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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

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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

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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

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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

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Defendant pleaded guilty to one count of conspiracy to commit money laundering and thirty counts of money laundering. On appeal, defendant challenged the portion of his sentence that imposed forfeiture and restitution. Defendant argued that, because the FBI was essentially a part of the DOJ, the two entities were functionally the same. Thus, he argued, requiring him to pay forfeiture to the DOJ and restitution to the FBI would result in an impermissible double recovery for the government. The court concluded that the two payments represented different types of funds: punitive and compensatory. They were different in nature, kind, and purpose. Therefore, it was irrelevant as to what extent the FBI and DOJ were distinct entities and the district court did not clearly err when it did not offset defendant's forfeiture amount. View "United States v. Davis" on Justia Law

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Defendant appealed his conviction of two counts of securities fraud, arguing that he was prejudiced by the trial court's improper admission of a prior civil complaint filed by the SEC against him. The court agreed and vacated defendant's conviction, remanding for a new trial. View "United States v. Bailey" on Justia Law

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Petitioner, in his capacity as the State Director of the United Public Workers, AFSCME, Local 646, AFL-CIO (UPW), negotiated contracts with dental and health insurance providers, HDS and PGMA, on behalf of UPW members and their families. A jury subsequently convicted petitioner of fifty counts of "theft of honest services" from the UPW and its members, as well as conspiracy, embezzlement, money laundering, and health care fraud. At issue was the instructional omission to the jury regarding honest services fraud in light of the Supreme Court's holding in Skilling v. United States. The court held that the error had no "substantial and injurious effect or influence in determining the jury's verdict." Accordingly, the court affirmed the theft of honest services, money laundering, and health care fraud judgments of conviction against petitioner and affirmed the judgment of the district court. View "United States v. Gary Rodrigues" on Justia Law

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In this case, an insurance agency had a contract with an insurance company that allowed the agency to commingle collected insurance premiums with its other funds in its general operating account. The government contended that the premiums collected by the agency were the property of the insurance company and held "in trust" by the agency; it alleged that when the funds were not remitted but used for other purposes, they were embezzled by the agency's treasurer, defendant. Defendant was charged with ten counts of embezzlement of insurance premiums in violation of 18 U.S.C. 1033(b)(1) and one count of conspiracy to commit embezzlement. The court held that under long-standing Arizona law, the contract between the agency and the company, which permitted agency commingling, required monthly agency payments whether premiums were collected or not, and created a right of interest on late payments, created a creditor-debtor relationship, not a trust. The agency had contractual and fiduciary duties to the company, but was not a trustee. Because the funds in question were not held "in trust" by the agency as a matter of law, an essential element of embezzlement was lacking. Therefore, the court reversed the denial of defendant's motion for judgment of acquittal. View "United States v. Lequire" on Justia Law

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Defendant appealed from a restitution order imposed by the district court after a jury convicted her of various crimes associated with her involvement in a fraudulent real estate investment scheme. The court held that the district court failed to provide an adequate explanation of its reasoning in calculating the amount of restitution owed to two of the victims and, therefore, vacated that portion of the restitution order. The court remanded for recalculation and explanation of the award pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. 3663A. View "United States v. Yeung" on Justia Law

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This case centered around the political corruption of former California Congressman Randall "Duke" Cunningham, who provided lucrative government defense contracts to defendant and others in exchange for expensive meals, lavish trips, a houseboat in Washington D.C., and mortgage payments for his multi-million dollar home. Defendant appealed his convictions on multiple counts of conspiracy, honest services wire fraud, bribery, and money laundering. The court held that, under its holding in United States v. Straub, the district court's determination that it was not authorized to compel use immunity for a defense witness absent a finding of prosecutorial misconduct was erroneous. Because the district court concluded that the proffered testimony would "counter" the testimony presented by the prosecution through immunized government witnesses, and the government did not challenge that finding as clearly erroneous, the court remanded the matter to the district court with instructions to conduct an evidentiary hearing to determine whether compelled use immunity regarding the proposed testimony was constitutionally required. The court affirmed the district court's judgment of conviction in all other respects. View "United States v. Wilkes, et al." on Justia Law