Justia White Collar Crime Opinion Summaries

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

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Defendant appealed her jury conviction for one count of conspiracy, one count of bank fraud, and thirteen counts of loan fraud. On appeal, defendant contended that the district court committed prejudicial error by admitting two summary charts under Federal Rule of Evidence 1006; there was insufficient evidence to support each of her convictions; and the district court erred in ordering her to pay restitution in the full amount of the victim lenders' loss, despite a prior civil settlement with the victim lenders that included a release from liability. The court held that the charts were properly admitted under Rule 1006, 404(b), and 403. The court also held that the evidence at trial was sufficient for a rational jury to convict defendant of the crimes for which she was charged. The court held, however, that under the current restitution order, the victim lenders would receive more than their actual losses and therefore, the imposition of the order was plain error. Accordingly, defendant's convictions were affirmed and the restitution order vacated and remanded with instructions. View "United States v. Rizk" on Justia Law

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Defendant, the former Chief Executive Officer of Brocade Communications (Brocade or the Company), a company the developed and sold data switches for networks, appealed his conviction in a second criminal trial for securities fraud and making false filings; falsifying corporate books and records; and making false statements to auditors in violation of securities laws. Defendant was previously convicted of violating the securities laws but the court vacated that conviction because of prosecutorial misconduct and remanded for a new trial. In this appeal, the court held that there was no evidence of sufficient facts in the record to support any allegation of prosecutorial misconduct. The court also held that there was sufficient evidence of materiality to support defendant's conviction. The court further held that the district court did not abuse its discretion by not giving defendant's proposed jury instruction. Accordingly, the court affirmed the judgment. View "United States v. Reyes" on Justia Law

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Defendant appealed his sentence of 25 months' imprisonment plus five years of supervised release following his guilty plea to ten counts of embezzlement under 18 U.S.C. 656, and eight counts of bank fraud under 18 U.S.C. 1344. The eighteen counts defendant pleaded guilty to related to two schemes to defraud Wells Fargo: an embezzlement scheme and a check-kiting scheme. On appeal, defendant's primary contention was that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal indictment, the district court erred in applying U.S.S.G. 3C1.1 to enhance his sentence for willfully obstructing justice. The court held that because the district court applied the correct legal standard and relied upon probative evidence submitted by the government, the district court did not err in calculating the intended loss at being over $200,000. The court also held that "willful" meant only that defendant had engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it did not mean that defendant had to know for certain that the investigation was pending. Accordingly, the court affirmed the judgment. View "United States v. Gilchrist" on Justia Law

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Appellant was the target of a grand jury investigation seeking to determine whether he used secret Swiss bank accounts to evade paying federal taxes. The district court granted a motion to compel appellant's compliance with a grand jury subpoena dueces tecum demanding that he produce certain records related to his foreign bank accounts. The court declined to condition its order compelling production upon a grant of limited immunity, and pursuant to the recalcitrant witness statute, 28 U.S.C. 1826, held appellant in contempt for refusing to comply. The court held that because the records sought through the subpoena fell under the Required Records Doctrine, the Fifth Amendment privilege against self-incrimination was inapplicable, and appellant could not invoke it to resist compliance with the subpoena's command. The court also held that because appellant's Fifth Amendment privilege was not implicated, it need not address appellant's request for immunity. Accordingly, the judgment of the district court was affirmed. View "In re: Grand Jury Investigation of M.H." on Justia Law

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This case arose when defendant was charged with one count of embezzlement and theft of labor union assets. At issue was whether the district court's employment of supplemental arguments impermissibly coerced a guilty verdict and whether the district court committed plain error by failing to instruct the jury regarding defendant's defense that her actions were authorized by the union's president. The court held that the district court neither coerced a guilty verdict nor abused its discretion by ordering supplemental closing arguments under the circumstances presented in this case. The district court also did not commit reversible plain error by failing to instruct the jury on an authorization defense, as the evidence presented and relied on by defendant at trial did not support a finding that her actions were authorized by the union. Accordingly, the judgment of the district court was affirmed.

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This is the second appeal arising from the failed prosecution of defendants for securities and investment fraud. At issue was whether the district court abused its discretion in denying defendants' motion to reopen under Fed. R. Civ. P. 60(b)(3) based on an internal government memorandum (memo) written shortly after the district court dismissed the indictment. The court held that the district court acted within its discretion in finding that the memo did not show fraud on the court or provided a basis to reopen the case to allow discovery into that issue where the memo was not a revelation of new information about the discovery misconduct during trial and where the memo was consistent with the court's prior conclusion that the government's misconduct during trial was a mixture of intentional and negligent pretrial and trial acts and omissions. Accordingly, the judgment of the district court was affirmed.

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Former Arizona Congressman Richard G. Renzi sought to invoke the Speech or Debate Clause ("Clause") of the Constitution to preclude his prosecution for allegedly using his public office to benefit himself rather than his constituents. Renzi denied the charges against him but argued on interlocutory appeal that he was protected by the Clause from even the burden of defending himself. Specifically, Renzi claimed that the public corruption charges against him amounted to prosecution on account of his privileged "legislative acts"; that "legislative act" evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of "legislative act" evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit "negotiations." The court held that it lacked jurisdiction under the collateral order doctrine to consider Renzi's suppression claim and therefore, dismissed that part of his appeal. The court also held that the Clause was a privilege that "had enabled reckless men to slander and even destroy others with impunity," but the Supreme Court had made equally clear that the Clause did not "make Members of Congress super-citizens, immune from criminal responsibility." Accordingly, the court held that Renzi's actions fell beyond the Clause's protections and denied him the relief that he sought.

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Defendants, the chairman and chief executive officer of Lunde Electric Company ("company"), appealed convictions stemming from the misappropriation of employee 401(k) contributions to pay the company's operating expenses. At issue was whether there was sufficient evidence to support defendants' convictions under 18 U.S.C. 664, for embezzlement or conversion of elective deferrals, and 18 U.S.C. 1027, for false or misleading statements in a required Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C 1001 et seq., document. The court held that there was sufficient evidence to support defendants' convictions on Counts 17 and 18 under section 664 where there was sufficient evidence for the jury to conclude that the 1991 Profit Sharing Plan had been restated before defendants retained their employees' elective deferrals in the company's general account; where defendants commingled their employees' contributions with the company's assets to prop up their failing business and therefore, intentionally used their employees' assets for an unauthorized purpose; where they sent participants account statements showing 401(k) balances which were in fact non-existent; where defendants' decision to deviate was the wilful criminal misappropriation punished by section 664; and where defendants were alerted repeatedly about their obligation to remit the deferrals and defendants hid their actions from employees. The court also held that there was sufficient evidence to support defendants' convictions on Count 21 under section 1027 where defendants' initial decision to mislead their own employees about the solvency of their retirement plans by filing false account statements and false Form 5500s were the behaviors targeted by section 1027.