Justia White Collar Crime Opinion Summaries

Years after Steven Greenfield was implicated in tax evasion as a result of a document leak, the Government issued a summons for Greenfield’s records, including documents relating to all of Greenfield’s financial accounts and documents pertaining to the ownership and management of offshore entities controlled by Greenfield. Greenfield opposed production and moved to quash the summons based on his Fifth Amendment right against self-incrimination. The district court granted enforcement as to a subset of the records demanded by the summons. The court found that, for all but a small subset of the documents covered by the order, the Government has not demonstrated that it is a foregone conclusion that the documents existed, were in Greenfield’s control, and were authentic even in 2001. Second, the court found that the Government has failed to present any evidence that it was a foregone conclusion that any of the documents subject to the summons remained in Greenfield’s control through 2013, when the summons was issued. Accordingly, the court vacated the district court's order and remanded, because the Government has not made the showing that is necessary to render Greenfield’s production of the documents non-testimonial and, hence, exempt from Fifth Amendment challenge. View "United States v. Greenfield" on Justia Law

Defendant, then a 67-year-old retired engineer turned tax preparer, was convicted of 32 federal offenses arising from a tax fraud scheme. Defendant was sentenced to fifteen years in prison and ordered to pay just over $500,000 in restitution. The court held that 18 U.S.C. 1546(a) does not apply to U.S. passports or U.S. passport cards. Thus, the district court erred by denying defendant’s motion for judgment of acquittal as to Counts 33 and 34. The court concluded that the district court clearly erred in holding that the conduct at issue in the second case, where defendant was not convicted, was sufficiently “related” to the conduct at issue in the first case to warrant inclusion of losses in the second case in the order for restitution pursuant to 18 U.S.C. 3663A(a)(2). Consequently, the court concluded that although ordering restitution for related conduct that did not result in a conviction was within “statutory bounds,” the order for restitution, here, was an abuse of discretion. The United States concedes, and the court agreed, that the wrong version of USSG 2B1.1(b)(2)(C) was used and that this error requires remand to resolve the determination of the number of victims; the primary flaw with the “intended loss” finding, here, is that the district court improperly considered the intended loss from the second case, even though the second case did not involve “relevant conduct,” under USSG 1B1.3(a)(2); the United States nowhere identifies evidence establishing - or identified by the district court as the basis for a finding - that specific challenged amounts of intended loss in the first case were, in fact, actual or intended losses; the district court erroneously applied the identity theft specific offense characteristic under USSG 2B1.1(b)(11)(C); the district court properly imposed the “sophisticated means” enhancement under USSG 2B1.1(b)(9)(C); because the court vacated defendant's conviction on Count 33, no cross-reference is applicable and the district court must recalculate the sentence on remand; the district court properly applied the enhancement for “abuse of trust” under USSG 3B1.3; and the district court properly applied an "obstruction of justice" enhancement under USSG 3C1.1. Accordingly, the court affirmed in part, reversed in part and remanded. View "United States v. Thomsen" on Justia Law

Defendant, a tile salesman, received material, nonpublic information from a corporate inside and then passed that information along to friends, who used it to obtain substantial trading gains. After a jury trial, Defendant was convicted of committing securities fraud and conspiring to commit securities fraud. Defendant appealed, arguing that there was insufficient evidence in the record to support his conviction, where he was neither a corporate insider nor a trader of securities. The First Circuit affirmed, holding (1) the evidence was sufficient to show that Defendant knowingly breached a duty of confidence; (2) the district court’s instructions did not improperly shift the burden of proof or misstate the state of mind element of the securities fraud offense; and (3) the evidence was sufficient to show that Defendant anticipated receiving a benefit as a result of his disclosure. View "United States v. McPhail" on Justia Law

Eberts is a film producer whose credits include Lord of War (2005) and Lucky Number Slevin (2006). After a string of failed movies, in 2009, he filed for bankruptcy. He was introduced to Elliott, an Illinois novice author who wanted to adapt his book into a movie. Eberts and Elliott formed a limited liability company. Both agreed to invest money. Eberts did not disclose his insolvency. Over the next year Elliott wired $615,000 to accounts controlled by Eberts. Eberts applied only 10% of that money toward the movie; he paid his father and bankruptcy attorney and spent the rest on personal items like art, furniture, designer clothing, and fine wines. Eberts also solicited and received a $25,000 loan from Elliott for an unrelated project and never repaid it. After Elliott discovered the scam, he filed suit. Later, Eberts pleaded guilty to seven counts of wire fraud, 18 U.S.C. 1343, and three counts of money laundering, section 1957, and was sentenced to 46 months’ imprisonment, the top of the guidelines range. The Seventh Circuit affirmed, rejecting an argument that the court failed to consider the 18 U.S.C. 3553(a) sentencing factors or Eberts’s mitigation arguments, but based the sentence on unsupported facts. View "United States v. Eberts" on Justia Law

Defendant was convicted of three counts of tax evasion and sentenced to 51 months in prison, as well as three years of supervised release. Defendant contends that he was entitled to present provisions of the Internal Revenue Code and other material to the jury for the purpose of supporting a mistaken-belief defense. The court affirmed the district court's evidentiary rulings, concluding that the right to present a complete defense does not entitle a defendant to present the jury with evidence that is either irrelevant or is properly excluded under Federal Rule of Evidence 403. The court concluded that Special Condition 13, which requires that defendant refrain from creating or establishing any new websites and that he remove any of his currently existing websites, and Special Condition 14, which bans defendant from using or possessing computing devices without prior written approval from a probation officer and requires him to consent to searches of any computer he is permitted to possess, are both overly broad. Accordingly, the court affirmed the district court's evidentiary rulings but vacated the challenged special conditions of supervised release and remanded for resentencing. View "United States v. West" on Justia Law

In 2003, the government awarded Laguna a contract for Worldwide Environmental Remediation and Construction (WERC). Under the contract, Laguna received 16 cost-reimbursable task orders to perform work in Iraq, and awarded subcontracts to several subcontractors. The physical work under the contract was completed by 2010. Laguna sought reimbursement of past costs, a portion of which the government refused to pay after an audit by the Defense Contract Audit Agency. Before the Armed Services Board of Contract Appeals, the government alleged that it was not liable because Laguna had committed a prior material breach by accepting subcontractor kickbacks (18 U.S.C. 371, 41 U.S.C. 53), excusing the government’s nonperformance. Three of Laguna’s officers were ultimately indicted for kickbacks. The Board granted the government summary judgment on that ground, The Federal Circuit affirmed. Laguna committed the first material breach by violating the contract’s Allowable Cost and Payment clause because its vouchers were improperly inflated to include the payment, Federal Acquisition Regulation 52.216-7. View "Laguna Constr. Co. v. Carter" on Justia Law

Defendant, a licensed physician, appealed convictions stemming from her participation in a broad scheme involving a number of medical services professional corporations (PCs) to defraud insurance companies in connection with claims submitted under New York’s No Fault Comprehensive Motor Vehicle Insurance Reparation Act, N.Y. Ins. Law 5102 et seq. Defendant held herself out as the owner of a PC and represented herself as such on claims. The jury found that, while defendant was the owner on paper, the true owners of the clinic were coconspirator nonphysicians. Defendant principally contends that the jury should have been instructed, in determining the question of ownership, to consider only the formal indicia of ownership, and not the economic realities. The court concluded, however, that New York law is clear that ownership for purposes of New York insurance law is based on actual economic ownership. The court held that, as in the civil context, a factfinder in a criminal case may properly consider factors beyond formal indicia of ownership in determining ownership under New York’s no‐fault insurance laws. The court rejected all of defendant's arguments and affirmed the judgment. View "United States v. Gabinskaya" on Justia Law

Jason Merida, the former executive director of construction for the Choctaw Nation of Oklahoma (the Nation), was convicted after a fifteen-day jury trial on six counts of a seven-count indictment. The indictment alleged Merida conspired to receive cash and other remuneration from subcontractors performing work on construction projects for the Nation, embezzled in excess of $500,000 by submitting and approving false subcontractor invoices, and willfully failed to report income on his 2009 and 2010 federal tax returns. Merida testified in his own defense at trial and, on cross-examination, prosecutors impeached his testimony using the transcript of an interview the Nation’s attorneys had conducted with him as part of a separate civil lawsuit, before the initiation of these criminal proceedings. Merida objected to the use of the transcript and moved for mistrial, arguing the transcript was protected by the attorney-client privilege and its use prejudicially damaged his credibility with the jury. The district court denied his motion for a mistrial and the jury convicted Merida on all but one count. Merida timely appealed the trial judge’s denial of his motion for mistrial. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Merida" on Justia Law

Defendant Roger Barnett served as Second Chief of the Muscogee (Creek) Nation in 2013 and 2014. He pleaded guilty in the United States District Court for the Northern District of Oklahoma to embezzling funds from the Tribe by appropriating to his own use money withdrawn from ATM machines. The sole issue on this appeal was whether the district court properly determined the amount of money embezzled for purposes of calculating Defendant’s offense level and the amount he owed the Tribe in restitution. Defendant argued that the court’s reliance on the presentence report (PSR) and Addendum was improper because the government failed to present at sentencing any evidence of the amount of loss. The Tenth Circuit disagreed: the district court could properly rely on the PSR and Addendum because Defendant did not adequately challenge their recitations of the evidence concerning his defalcations. The only issue that he preserved for appeal was whether the recited evidence sufficed to support the court’s determination of the amount of loss, and the Tenth Circuit held that the evidence was sufficient. View "United States v. Barnett" on Justia Law

Defendant was convicted of charges related to his role as a closing attorney in several real estate transactions in upstate New York from approximately 2001 until 2007. The court focused primarily on defendant's challenge to the three substantive counts of conviction involving activity directed at BNC. The court held that evidence of fraudulent activity directed at BNC is not enough to support convictions under 18 U.S.C. 1344 (bank fraud) and 1014 (false statements) solely by virtue of the fact that BNC was owned by a federally insured financial institution. Therefore, the court reversed defendant's convictions on the three substantive counts. However, the court concluded that the conspiracy to violate section 1014 count of conviction involved fraudulent misstatements made directly to a federally insured bank. Therefore, the court affirmed defendant's conviction on that count and remanded for resentencing. View "United States v. Bouchard" on Justia Law