Articles Posted in U.S. Court of Appeals for the Fifth Circuit

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Defendant, operator of a tax preparation business, was convicted of corruptly endeavoring to obstruct the administration of the tax code and of three counts of filing fraudulent tax returns. The Fifth Circuit upheld the convictions and amount of the restitution award, but modified the judgment so the restitution obligation was limited to the supervised release term that was the only period during which restitution can be imposed for a tax offense. View "United States v. Westbrooks" on Justia Law

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Defendant, owner of a wholesale salon equipment business, appealed his 36 month sentence after pleading guilty to aiding and assisting in the preparation of a false and fraudulent tax return. The court held that the district court did not clearly err when it determined, based on the circumstantial evidence, that it was more likely than not that defendant participated in his customers' structuring activities. Therefore, the court concluded that defendant's sentence was not procedurally unreasonable. The court also held that the district court did not abuse its discretion in imposing the upward variance to defendant's sentence where the district court explained that it was imposing the above-Guidelines sentence based on a variety of factors, including, inter alia, the magnitude of defendant's dishonesty and unwillingness to abide by society's rules, the aggravated nature of the criminal conduct, and defendant's exceptional business success had a significant foundation in his unlawful activity. Accordingly, the court affirmed the sentence. View "United States v. Nguyen" on Justia Law

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Six defendants appealed their convictions for Medicare fraud, as well as paying and receiving kickbacks for referrals. Defendants' scheme involved fraudulently billing Medicare for services provided at a community mental health center. The court concluded that the district court did not err in declining to suppress the evidence seized pursuant to the warrant; the indictment does not present any reversible error; the court rejected claims of evidentiary errors; the court rejected claims of error regarding the jury instructions; the evidence was sufficient to convict defendant of conspiracy to commit health care fraud and substantive health care fraud, as well as the kickback counts; there was no Eighth Amendment problem with the forfeiture order; and the court agreed with the government that the district court erred by deciding to offset defendants' restitution obligations with any amount collected pursuant to the forfeiture order. Accordingly, the court modified the restitution and forfeiture orders to eliminate the offset. The court affirmed the judgment in all other respects. View "United States v. Sanjar" on Justia Law

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Defendant Abraham Fisch, a criminal defense attorney, was convicted of conspiracy, obstruction of justice, money laundering, and tax evasion. Defendant and Lloyd Williams, a former FBI informant, would approach defendants who had criminal charges pending against them and told the defendants to pay them large sums of money as purported legal fees. Fisch and Williams promised to use the money to pay off federal officials but, in actuality, had no such government contacts. The court concluded that the evidence was sufficient to convict defendant of the offenses; Fisch failed to make out a Fifth Amendment violation based on the denial of a hearing regarding the lis pendens on his home; Fisch failed to establish a Sixth Amendment violation by the government's seeking a lis pendens on his home as an asset traceable to his criminal proceeds; Fisch failed to make the requisite showing of prosecutorial misconduct; the court rejected Fisch's challenges to the jury instructions; and the court rejected Fisch's challenges to the district court's post-trial forfeiture orders. The court declined to address Fisch's ineffective assistance of counsel claims on direct appeal. Accordingly, the court affirmed as to all issues except the denial of Fisch's ineffective assistance of counsel claims. View "United States v. Fisch" on Justia Law

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Defendant appealed his sentence and conviction for filing false liens or encumbrances. The court concluded that the evidence was sufficient to convict defendant where a jury could conclude from the filings at issue that defendant was attempting to file false liens or encumbrances; the district court did not abuse its discretion by answering a jury note where, among other things, responding would have conflicted with the jury instructions; and the district court did not err by adding a six-level enhancement under USSG 2A6.1(b)(1) for threatening or harassing communications where there was evidence that defendant threatened to file liens. Accordingly, the court affirmed the judgment. View "United States v. Jordan" on Justia Law

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Defendant was charged with four counts of making false statements under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), and convicted of Counts Two through Four. The court held that the indictment was not defective, and any prejudice introduced to the jury by the indictment's "used" language was harmless; the evidence was sufficient to support her convictions; and the district court did not err by applying USSG 2J1.3, the perjury guideline, to her offense where the gravaman of the charge was that defendant interfered with the bankruptcy court's administration of justice, not that she defrauded any creditors. Accordingly, the court affirmed the judgment. View "United States v. Grant" on Justia Law

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Defendant was convicted of seven counts of wire fraud and one count of making false statements to an FBI agent. Defendant's convictions stemmed from his involvement in a fraudulent scheme involving the alleged development of a Disney theme park in Celina, Texas. The court rejected defendant's evidentiary challenges, concluding that the district court did not abuse its discretion by admitting evidence that defendant met the individual who informed him of the Disney development at a methadone clinic because the true nature of the relationship that defendant had with the person he claimed to be his source for the Disney information was inextricably intertwined with the fraudulent scheme. The court also concluded that, even assuming that new information regarding the involvement of defendant's uncle, the uncle's participation does not undermine the conclusion that defendant was involved in the scheme. Therefore, the district court did not abuse its discretion in denying defendant a new trial on these bases. Finally, the court rejected defendant's objections to the admission of portions of his deposition testimony through the summary-evidence testimony of a government agent. Accordingly, the court affirmed the judgment. View "United States v. Lucas, Jr." on Justia Law

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Defendant appealed his sentence and conviction for theft from a program receiving federal funds, money laundering, and payment structuring arising out of work he performed for the New Orleans Traffic Court. The court concluded that the evidence presented at trial, taken in the light most favorable to the government, was sufficient for a rational trier of fact to find that the elements of 18 U.S.C. 666, theft from a program receiving federal funds, were met. In the alternative, the court concluded that the application of section 666 to the unlawful conduct here is constitutional because the evidence was sufficient to establish an agency relationship between defendant and the entity receiving federal funds according to the statutory definition and the limiting principles described in United States v. Phillips. Finally, the court rejected defendant's evidentiary errors and defendant's challenge to the district court's grant of the government's reverse-Batson challenge. Accordingly, the court affirmed the judgment. View "United States v. Thomas" on Justia Law

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Defendants Johnson and Everson were charged with conspiracy to prepare false and fraudulent income tax returns. The court concluded that the district court did not abuse its discretion in refusing to grant the Government's initial motion for waiver of a jury trial, there is no constitutional right to a non-jury trial, and defendants failed to assert a claim of prejudice before the district court and their requests for waiver of a jury trial were intelligently made. The court also concluded that the district court did not clearly err in adopting the PSR’s calculation method in estimating the amount of tax loss generated by defendants' fraudulent activity. Finally, the court concluded that the time frame allotted to defendants to prepare their defense did not constitute plain error. Accordingly, the court affirmed the judgment. View "United States v. Johnson" on Justia Law

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Defendant pled guilty to a multi-count indictment for crimes related to his involvement in a fraudulent Medicare scheme. On appeal, defendant challenges his 97 month sentence. The court concluded that defendant's principal argument that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause is foreclosed by precedent; defendant waived his argument that even if the 2009 Guidelines apply to his sentence, the Medicare beneficiaries were not “victims” within the meaning of the 2009 definition but were more like co-conspirators; and defendant's remaining claims are without merit. Accordingly, the court affirmed the sentence. View "United States v. Shakbazyan" on Justia Law