Justia White Collar Crime Opinion Summaries

Company A was incorporated in Florida in 2008. Doe was its president and “sole proprietor,” but a November 2008 document purports to memorialize Doe’s sale of all shares of Company A to Company B for $10,000. Numerous filings and tax documents suggested that Doe maintained control and ownership of Company A after the transfer. Multiple individuals have sued Doe and his businesses in state courts around the country based on Doe’s business practices. Doe and the companies became the subjects of a federal grand jury. The government obtained access to Doe’s email. Doe filed an interlocutory appeal to prevent its disclosure. While the appeal was pending, the district court granted permission to present the email to the grand jury, finding that although the email was protected by the work product privilege, the crime-fraud exception to that doctrine applied; in 2016, the grand jury returned a 17-count indictment, charging conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, conspiracy, mail fraud, wire fraud, and money laundering. The Seventh Circuit dismissed the interlocutory appeal for lack of jurisdiction. The damage of disclosure has already been done. Should a jury convict the defendants, they will have another, equally adequate opportunity to claim privilege. View "In re: Grand Jury Matter #3" on Justia Law

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

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

Defendant, the owner and operator of a freight service that couriered items to and from the United States and Canada, was found guilty of nine counts of tax-related offenses. Defendant was charged with violating 26 U.S.C. 7212(a), which imposes criminal liability on one who ʺcorruptly or by force or threats of force . . . endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title.” Another portion of the statute, often referred to as the ʺomnibus clause,ʺ imposes criminal liability on one who ʺin any other way corruptly . . . obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title.ʺ On appeal, defendant argued that the court, like the Sixth Circuit, should construe the phrase ʺthe due administration of this titleʺ in the omnibus clause to include only a pending IRS action of which a defendant was aware. The court rejected defendant's argument and joined three of its sister circuits in concluding that section 7212(a)ʹs omnibus clause criminalizes corrupt interference with an official effort to administer the tax code, and not merely a known IRS investigation. The court also concluded that an omission may be a means by which a defendant corruptly obstructs or impedes the due administration of the Internal Revenue Code under section 7212(a). Finally, the court concluded that the district court did not commit procedural error by using the manner of calculating the tax loss and restitution amounts that it did, or by deciding not to apply a two‐level reduction to defendant's base offense level for acceptance of responsibility. Accordingly, the court affirmed the judgment. View "United States v. Marinello" on Justia Law

In 2010, Free, as the sole proprietor of Electra Lighting, filed a voluntary bankruptcy petition. He also owns Freedom Firearms, selling WWII-era guns. After Free fell behind on payments on business-related properties, the lender purchased them in foreclosure; Free purportedly filed for bankruptcy in an effort to “stay” the sale and “work out an agreement.” He had sufficient assets to pay his debts. He then hid assets worth hundreds of thousands of dollars from the Bankruptcy Court. Free was eventually convicted for multiple counts of bankruptcy fraud. His creditors received 100 cents on the dollar. The Sentencing Guidelines increase a fraudster’s recommended sentence based on the amount of loss he causes, or intends to cause. The district court treated the estimated value of the assets that Free concealed and the amount of debt sought to be discharged as the relevant “loss” under the Guidelines. The Third Circuit vacated. On remand, the court must determine whether Free intended to cause a loss to his creditors or what he sought to gain from committing the crime. Free will not necessarily receive a lower sentence on remand. Free’s repeated lying to the Bankruptcy Court and his manifest disrespect for the judicial system may merit an upward variance from the Guidelines. View "United States v. Free" on Justia Law

Defendant was convicted of mail fraud for his part in a scheme to procure life insurance policies by misrepresenting the applicants’ net worths and their intention to transfer the policies to a third party. On remand for resentencing, the district court applied an 18-level enhancement to defendant's base offense level due to the actual loss caused by defendant's scheme to insurers and a lender. With respect to the district court’s findings on the insurers’ actual loss, the court concluded that neither the law of the case doctrine nor the mandate rule required a finding of zero actual loss by the insurers at resentencing. The court also concluded that defendant did not waive his challenges to the actual loss suffered by the lender; the district court did not err when it declined to factor Portigon’s sale of its portfolio to EAA into its actual loss calculation and instead calculated the actual loss amount based on the time of the first sentencing; the district court’s decision to base its actual loss calculation solely on the inactive policy loans was a “reasonable estimate of the loss” based on the information available to the court; and the district court did not commit clear error in finding that the actual losses to the insurers and the lender were “reasonably foreseeable pecuniary harm that resulted from [Bazemore’s] offense.” Finally, the court concluded that defendant waived his arguments regarding the proffer agreement and waived his Apprendi challenge. Accordingly, the court affirmed the judgment. View "United States v. Bazemore" on Justia Law

After defendant pled guilty to embezzlement by a bank officer or employee, she challenged her sentence, arguing that it violated her constitutional rights and that it was both procedurally and substantively unreasonable. The court concluded that the district judge abused his discretion by giving significant (indeed, dispositive) weight to defendant's inability to pay restitution. Because the district judge confirmed and reiterated his consideration of defendant's inability to pay restitution as a factor in his order on remand---coupled with his stated belief that defendant's arguments on appeal were “frivolous,” even after having the benefit of reviewing those arguments---it appears the district court may be unable to disregard its improper consideration of that factor or, at least, that it may appear so. Therefore, the court exercised its supervisory powers and remanded for resentencing before a different district judge. View "United States v. Plate" on Justia Law

Defendant pleaded guilty to three counts of wire fraud and mail fraud. On appeal, defendant challenged the restitution order and a forfeiture money judgment, both in the amount of $2,232,894. The court concluded that, as a preliminary matter, the circumstances surrounding the signing and entry of the plea agreement support the conclusion that defendant entered into the agreement knowingly and voluntarily. The court also concluded that the plea agreement shows that it provided sufficient information from which defendant could have derived an accurate estimate of the amount of restitution for which he was liable; the plain language of the plea agreement clearly states the minimum amounts of restitution that defendant would have to pay rather than the maximum agreed-upon restitution amount, and the district court’s imposition of a larger amount of restitution was not in conflict with the plea agreement; the award of restitution is not an illegal sentence in this case and the district court did not err in ordering restitution for all losses caused by the schemes to defraud, and the order was not illegal; and the court rejected defendant's arguments as to the forfeiture order and concluded that it did not constitute an illegal sentence. Accordingly, the court dismissed the appeal. View "United States v. Lo" on Justia Law

Defendant plead guilty to theft of government property, in violation of 18 U.S.C. 641, for his unlawful receipt of social security benefits, and was sentenced to 18 months’ imprisonment. The court concluded that the district court did not err in applying a two-level enhancement under USSG 2B1.1(b)(11)(C)(i) for using an unauthorized means of identification to obtain another means of identification. The court concluded that defendant created fraudulent accounts in 2008 and 2011 without authorization; defendant's conduct fell within the ambit of USSG 2B1.1(b)(11)(C)(i) and 2B1.1 cmt. n.1; and the plain meaning of the phrase "actual" does not distinguish between living and deceased persons. As the Government demonstrated, the court has affirmed application of the Guideline outside the context of credit fraud, and applied the enhancement under circumstances factually analogous to those at hand. Finally, the court concluded that the rule of lenity does not preclude the application of the enhancement. Accordingly, the court affirmed the judgment. View "United States v. Suchowolski" on Justia Law

Defendant appealed his conviction for one count of conspiracy to defraud the IRS, four counts of client tax evasion, one count of IRS obstruction, and one count of mail fraud. The court concluded that the evidence was sufficient to support the convictions; the indictment was not constructively amended; the indictment was not duplicitous; defendant's due process right to a fair trial was not violated; the district court did not commit prejudicial error in giving a supplemental instruction about the Annual Accounting Rule; defendant's sentence was procedurally and substantively reasonable; and the court rejected defendant's claims of error as to the forfeiture order. Accordingly, the court affirmed the judgment. View "United States v. Daugerdas" on Justia Law