U.S. v. Vongxay, No. 09-10072 (2-9-10). Defendant was convicted of being a felon in possession of a firearm in violation of 922(g)(1). He argued that Heller, 128 S. Ct 2783 (2008) invalidates prohibitions against his constitutional right to bear arms. The 9th finds that his arguments misfire as nothing in Heller casts doubt upon the constitutionality of 922(g)(1). The panel (M. Smith joined by Bright and Hawkins) went through Heller, and found that it recognized that the Second Amendment could be limited, and that nothing in the opinion was to be taken to cast doubt on prohibitions against felons in possession. The 9th's precedents on this matter also continue to hold sway. The 9th joins the other courts that have considered this issue. As for the search claim, the 9th affirms the district court's finding that the defendant, by raising his hands, had consented to the search that led to a gun being found in his waistband.

Case o' The Week: A Sentencing Septimana Infaustus: Terrell-ible Decision on ACCA Residual Clause

Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir. Feb. 2, 2010), decision available here.

Players: Decision by Judge Bybee, joined by Judges Tashima and Graber.

Facts: Terrell was convicted of being a felon in possession of a gun. Id. at *1. The indictment alleged he had previously been convicted of three felonies:

i. an Arizona Second Degree burglary,

ii. an Arizona sexual assault, and

iii. a second-degree burglary in Missouri.

(Ed. note: Curious that the priors were alleged in the indictment).

The district court found Terrell to fall within the Armed Career Criminal Act (ACCA), which raised his stat-max from ten to fifteen years. Id. He was sentenced to 188 months. Id. at *2.

Issue(s): “Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as ‘violent felonies.’” Id.

Held: 1. Sexual Assault: “[W]e hold that Terrell’s prior sexual assault conviction qualifies as a ‘violent felony’ under the ACCA’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another . . . and is roughly similar to the enumerated offenses in that it typically involves purposeful, violent, and aggressive conduct.” Id. at *6 (internal quotations and citations omitted).

2. Burglary: “We hold that, although Terrell’s prior burglary offenses do not fit within the enumerated offenses, they do fit within the residual clause.” Id. at *7.

3. ACCA? “Because the district court correctly held that Terrell had been convicted of at least three ‘violent felonies’ at the time he committed his felon in possession offense, we affirm the district court’s decision to enhance Terrell’s sentence under the ACCA.” Id. at *10.

Of Note: Terrell has sparked much debate among defense experts as to what exactly is wrong with the opinion. Among other problems with the case is Judge Bybee’s expansive reading of the Supreme Court’s Begay opinion and the ACCA residual clause, particularly as it applies to state burglary crimes. Id. at *10. He interprets Begay to mean that “a state burglary offense is almost always at least ‘roughly similar’ to generic burglary, even if the state offense is somewhat broader.” Id. (emphasis added).

To get there Judge Bybee concludes that because there’s a risk of violent confrontation during an Arizona Second Degree burglary, it is “similar to” an “enumerated” burglary in the ACCA statute. That’s all well and good, except that this Arizona statute also defines “burglary” as breaking into a vending machine. Id. at *6. Is “burglaring” Doritos really the type of “violent criminal” that Congress had in mind when passing the ACCA?

Terrell casts the categorical net so broadly that it rends Taylor irrelevant – any state statue named the same as an enumerated ACCA crime will be deemed “close enough.” Terrell’s take on Begay will sweep many undeserving defendants into the ACCA’s fifteen-year mandatory minimums (and even higher guidelines): the case deserves en banc review.

How to Use: Undaunted, CJA appellate attorney Dan Drake has just begun to fight and has been hitting up the defense bar for ideas for his en banc petition. Preserve challenges to ACCA enhancements despite Terrell. There is much afoot in the Ninth on these issues (see below), and Terrell will hopefully not be the last word on the issue.

For Further Reading: Busy and bad describes this week in the Ninth. In the notorious Ressam case, Judge Alarcon weighed-in on a terrorism sentence and inadvertently created a bevy of defense opportunities for sentencing appeals. See 2010 WL 347962 (9th Cir. Feb. 2, 2010). As dissenting Judge Fernandez quipped, the broader impact of the case will make the day it was delivered a, “dies infaustus.” Id. at *37 (an “unlucky day.”)

And in another blow, on February 3rd the Ninth granted the government’s petition for rehearing en banc in Aguila-Montes de Oca, that wonderful Judge Thompson decision that excluded California burglaries as “crimes of violence” for the illegal reentry guidelines. See blog here.



Image of the vending machine from http://www.fooducate.com/blog/tag/vending-machine/ .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

.

U.S. v. Ressam, No. 09-30000 (2-2-10). In a decision that smacks of disagreement with the sentence, the 9th vacates a 22-year sentence of a convicted terrorist because the district court, in sentencing, supposedly committed procedural error in failing to specifically address the government's Guideline and 3553 arguments. The 9th (Alarcon joined by Clifton) remanded to a different judge for resentencing. Dissenting, Fernandez argues that the majority simply disagreed with the sentence, arrived at by a district court with long familiarity with the case, and the cooperation rendered, and decided that there was error when there was not.

This case involved the defendant plotting to detonate explosives at LAX on the eve of the millennium. He was caught, and after trial, began cooperation. He later stopped cooperating, recanted, and was sentenced to 22 years. The case then went up to the 9th, and to the Supremes on an issue of conviction, and back down to the 9th, which vacated the sentence because of failure to calculate the Guidelines. Back on appeal now, after the district court had sentenced with explanations, the majority still finds procedural error. Specifically, the majority points to the district court's failure to "remain cognizant" of the Guidelines throughout the process of arriving at a sentence (which means that the further a court departs -- here from 65 years to 135 years down to 22 years -- the explanations have to be more extensive and compelling); that the district court failure to explain why it rejected the government's argument as to the value of the cooperation and the impact of defendant's recantation; the district court's crediting of defense expert's assessment of defendant's life history contrary to the PSR's findings; and the district court's failure to address the government's argument about why a longer sentence was required to protect public safety. The district court needed to specifically address each argument. Although U.S. v. Carty, 520 F.3d 984 (9th Cir. 2007) (en banc) does not require a court to give a lengthy explanation or even any explicit explanation for an in guidelines sentence in a typical or straightforward case, in a departure case, there has to be sufficient reasons stated. The failure to provide such reasons, and to remain cognizant of the guidelines, will be procedural error. In other words, the departure has to adequately address the guidelines not to be procedurally flawed. Likewise with the other arguments raised by the government. The majority, to maintain public trust, remands to a different judge for resentencing.

In dissent, Fernandez argues that this district court followed procedure, knew the case, knew the defendant, and gave adequate reasons. Fernandez concludes that: "Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years."

Would I give Ressam that "light" a sentence? I somehow doubt it, but that is not
the point. The point is that there are many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the district court has not slipped over them into the land of abuse of discretion. That will rarely happen; it did not happen here. Unfortunately, this case is just not about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. See Carty, 520 F.3d at 993. Even if we have to grit our teeth to do so, we should let it be.

U.S. v. Napulo, No. 08-10190 (2-1-10). The 9th vacates one special condition on SR, and vacates and remands a second to determine if it promotes deterrence, rehabilitation, or public safety. The first condition forbade the defendant from associating with anyone who has a misdemeanor conviction. The second concerns having any contact whatsoever with her life partner. The 9th (Reinhardt joined by Thomas and Paez) puzzle at the first condition, as many people can be law abiding and yet still have misdemeanor convictions for a variety of small offenses. There did not seem a tie to the ends of SR. The second condition concerning the life partner needed more fact-finding. Although the partner may have been a bad influence in the past, there were also good attributes put forward. Given the time that had elapsed from the original conviction, and various SR violations and this revocation, more of a factual record is required.

U.S. v. Terrell, No. 08-10560 (2-2-10). In an ACCA case, the 9th affirms the sentence enhancement for three prior felonies. The 9th finds that the prior convictions of sexual assault (Arizona), second-degree burglary (Arizona), and second degree burglary (Missouri) qualify under ACCA's residual clause in that they involve conduct that presents a serious potential risk of physical injury to another. The 9th (Bybee joined by Tashima and Graber) examine ACCA and these priors in light of the Supremes decision in Begay v. U.S., 128 S.Ct. 1581 (2008), which holds that ACCA's enumerated offenses (burglary, arson, extortion, and explosive crimes) apply not to all offenses that have a risk of violence, but only to offenses that are "roughly similar" to the enumerated by involving purposeful, violent, and aggressive conduct. The offenses here all qualify. The burglaries meet the definition because of the risk of face to face confrontation, even if the burglary includes that of a movable object.

U.S. v. Loew, No. 09-30032 (2-2-10). The 9th (Tallman joined by Beezer and Gould) affirm an upward adjustment for restraint of victim. The defendant was convicted for interstate harassment, obscene telephone calls, stalking, telephone threats, and violations of protective orders. The defendant's co-conspirator had threatened and kidnapped the victim. He also sexually assaulted her. The defendant argued that the co-conspirator's actions were not foreseeable because he just wanted the co-conspirator to intimidate the victim. The district court made factual findings that the defendant had induced the co-conspirator to threaten and kidnap the victim, which led to her being bound and assaulted. The 9th had no trouble in finding that the district court's factual findings settled the matter, and were not clearly erroneous. There was no intervening cause because of the defendant's own inducement.

U.S. v. Contreras, No. 08-50126 (2-2-10) (en banc). In a per curiam en banc opinion, the 9th adopted the three-judge panel's opinion in U.S. v. Contreras, 581 F.3d 1163 (9th Cir. 2009) involving abuse of position under 3B1.3. This was a clarification that limited the scope of the adjustment, excluding, for example, ordinary bank tellers who took bank funds. The original panel had found that the prior precedent had been, in effect, overturned by the Guideline amendment. The en banc panel disagreed with its analysis of overturning the prior precedent, and so took that portion out of the opinion while adopting the rest. Concurring, Tashima takes note that he believes the panel's mode of analysis was correct, and with that caveat, joins the opinion.

Case o' The Week: Treading Well on Fraud Clients - Treadwell, Wire Fraud, and "Intent to Harm"

Last week, the Green case taught us that one can commit wire fraud without breaking any specific state or federal law or regulation.

This week, the Ninth explains that one can commit wire fraud without intending to cause any loss to the "victims." See United States v. Treadwell, __ F.3d __, 2010 WL 309027 (9th Cir. Jan. 28, 2010), decision available here.

Ever feel like it would have been easier to defend Charles Ponzi (above), in 1920?

Players: Decision by Judge Gould, joined by Judge Bea and D.J. Molloy.

Facts: Treadwell and his co-defendants ran a massive, four-year Ponzi scheme that bilked 1,700 investors out of over $40 million. Id. at *1. The wire-fraud defense was that although the defendants “misrepresented the nature of the various corporations’ earnings, the defendants always believed that their investors would always make money.” Id. at *2. Without defense objection, the jury instructions stated that “it is no defense to fraud that the defendant honestly holds a certain opinion or belief, but also knowingly makes false or fraudulent promises, representations, or promises to others.” Id. (internal quotations omitted).

After a jury convicted the defendants on various conspiracy and wire counts Treadwell was sentenced to 300 months. Id. at *2.

Issue(s): “On appeal, [defendants] challenge their jury conviction, arguing that the jury instructions violated their Fifth Amendment due process rights because ‘intent to defraud’ under 18 U.S.C. § 1343 requires an intent to cause an actual loss.” . . . “[Defendants] argue that their . . . rights were violated by jury instructions that did not define ‘intent to defraud’ under 18 U.S.C. § 1343 to require an intent to cause a financial loss to the victims.” Id. at *3.

Held: “[T]o ‘defraud’ under § 1343 does not require an intent to cause a pecuniary loss to the victim.” Id. at *4 (quoting United States v. Oren, 893 F.2d 1057, 1062 (9th Cir. 1990)). “While an honest, good faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and sustain no loss is no defense at all.” Id. (quoting United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986)).

Of Note: The interesting defense argument focuses on, arguably, a circuit split. In the Second, Third, Fifth and Eight Circuits, “intent to defraud” requires a deprivation of asserts with an “intent to harm.” Id. at *4. In Treadwell, Judge Gould dodges the question of whether the Ninth has a “harm” requirement. Even if there is, though, Judge Gould concludes that “[t]he intent to induce one’s victim to give up his or her property on the basis of an intentional misrepresentation causes ‘harm’ by depriving the victim of the opportunity to weigh the true benefits and risks of the transaction, regardless of whether or not the victim will suffer the permanent loss of money or property.” Id. at *5 (emphasis added).

With all due respect, this rule seems to edge wire fraud closer to the unmoored “honest services” fraud problem. For example, assume that with a pure heart a broker embellishes the value of a stock in an e-mailed solicitation to her client. Her “victim” buys the stock, it rises, and the client makes a killing with a quick sale. Under Treadwell, the broker committed wire fraud – despite no intent to harm, and despite a tidy profit for the victim.

How to Use: Treadwell was a plain error challenge to jury instructions, and on horrible facts. Maybe the fraud issue still has some fight in a better case? The Supreme Court now has a trio of “honest services” fraud cases before it, and the Justices are clearly hostile to that amorphous species of fraud. See article here . Given an (arguable) circuit split on the “intent to harm” issue, and given the likely Supreme Court guidance coming down this term on fraud generally, Treadwell’s “intent to harm” challenge to the Ninth’s pattern fraud instructions may be worth preserving in a case going to trial anyway.

For Further Reading: Ever feel like the Madoff & Stanford headlines are stacking the government’s deck before the jury is even empaneled? Read Treadwell. The opinion is studded with history lessons on Ponzi schemes, Madoff, and other fraudsters. See e.g., id. at *1 n.1 (discussing the history of Charles Ponzi).

To survey the historical baggage we face in a fraud case, hit the N.Y.T.’s interesting summary here .


Image of Charles Ponzi from http://www.nytimes.com/2009/05/05/nyregion/05ponzi.html?_r=1, originally from the book “The Lawless Decade,” by Paul Sann.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

U.S. v. Treadwell et al, No. 08-50562 (1-28-10). Defendants ran a Ponzi scheme that resulted in a $40 million loss. Defendants entinced investers to "loan" money to companies that were doing humanitarian projects, salvaging wrecks in the Caribbean, and other good deeds. Charged and convicted of wire fraud and conspiracy, co-defendants argued that the jury instructions failed to define "intent to deceive" adequately, and that the element required intent to do harm. The 9th rejected this argument, joining the other circuits, which only require deception and a loss. The 9th also affirmed the sentences, holding that the +22 adjustment for loss was not error, and that the standard of proof was preponderance. In this case, a jury found guilt, and the evdience presented at trial supported the court's findings. The court also did not err in adjusting for misrepresenting the charitable aim. The defendants did not have a fraudulent charitable organization, but they presented their business as providing humanitarian aid. The sentences were not unreasonable.

U.S. v. Juvenile Male, No. 07-50107 (1-26-10). Youth is wasted on the young, especially if they should misstate their age. Here, the juvenile was arrested for alien smuggling after a chase. He gave a birthdate that made him 18. The Border Patrol, however, had information that he had given other dates, when he was previously arrested, which made him a minor. Indeed, he had been deported as a minor recently. The government contested his juvenile status, which lead to hearings, which included testimony by the Mexican consulate. The court found the defendant was indeed a juvenile. The government then lodged a certificate to proceed under the Juvenile Justice and Delinquency Prevention Act. The Act requires the government to allege that a state will not take jurisdiction. Here, the federal prosecutor asserted that the state district attorney would not take jurisdiction. The 9th, on appeal, issued a per curiam opinion, that discusses what amounts to take state jurisdiction. In California, the state constitution vests the courts with criminal jurisdiction upon the filing of criminal charges. Thus, the decision by the district county attorney not to press charges had the affect of refusing jurisdiction. Thus, the certificate was not in error. The problem for the government, though, lay with protections of the Juvenile Act, which were all violated when the juvenile was arrested but stated he was an adult. The 9th (Berzon, Ikuta, and Singleton) came down on an interpretation of the Act that stressed the triggering of the Act upon arrest, with a reasonable knowledge provision. In this instance, the government had information that would raise the issue of minor status. The government should have taken steps to contact the Mexican consulate or the parents. The violation of the Act's protections (notification of parents and consulate among others) could not be considered harmless. The juvenile had confessed, and the court relied heavily upon the confession in the adjudication. However, the confession was given without the parents being present or notified. The case is therefore remanded for a determination whether the confession was a result of the Act's violation and if so, then it must be suppressed. The court then must determine whether there was sufficient evidence to adjudicate. On another issue, related to speedy trial, there was no violation as the continuances tolled the Act's clock and were a result of the defendant's actions.

Congratulations to Deputy Federal Defender Leila Morgan of the Federal Defenders of San Diego.

U.S. v. Aguirre-Ganceda, No. 08-35696 (1-19-10). The 9th dismisses a 2255 motion as untimely because it was filed more than a year after the Supreme Court denied certiorari. The petitioner argued that the time should start running not from the denial of cert, but from the denial of his subsequent petition for rehearing. The 9th (Beezer joined by Gould and Tallman) holds that the Supreme Court was clear that time starts running with the denial of cert or the time for filing cert expires. The 9th also joins seven other circuits which have so ruled, looking at Supreme Court Rule 16.3. The 9th also holds that the petitioner has not demonstrated extraordinary circumstances to toll the statute.

U.S. v. Palos-Marquez, No. 08-50498 (1-19-10). UPS does more than deliver packages; its drivers can also provide "tips" to effectuate reasonable suspicion stops. Here, a pick-up truck passed a UPS truck going "faster than usual." The UPS driver gestured to an oncoming Border Patrol agent car. The agent took the gesture, combined it with the area's connection with alien smuggling, erratic driving, and the high rate of speed, to suspect that the pick-up might be smuggling. The agent radioed ahead and, before the truck was stopped, the occupants appeared "nervous and shaky." The truck was stopped and aliens were found. Can this unidentified tip with other facts amount to reasonable suspicion? "Yes," said the 9th. Ikuta, joined by Schroeder and Berzon, recognized that an unindented person can tip-off the police if the facts are reliable; a face-to-face encounter strengthens the reliability analysis because the tipster puts himself forward to be identified and risks losing anonymity, and his demeanor can be viewed. The UPS driver here presented both himself, and was observed. The UPS driver could easily be identified. The tip displayed a significant indicia of reliability that, combined with other factors, went to forming a reasonable suspicion.

Chaffer v. Propser, No. 07-16853 (1-19-10). In a per curiam AEDPA decision, the 9th again examines California's indeterminate timeliness rule. Under the state's rule, as long as the prisoner files a petition for review within a reasonable time, the petitioner can count as pending the time between the lower court reaching an adverse decision and the day he files a petition in a higher court. This pending time is added to the one year limit. What is reasonable? The petitioner had spans of 115 days and 101 days. That was not reasonable, the 9th writes, because this was "substantially longer" than the 30 to 60 days most states allow for the filing of petitions. The petitioner did not explain why the time took longer. He also cannot meet the extraordinary circumstances to trigger equitable tolling. His explanation that his prison library was missing reporters, and inmate law helpers were transferred, was met with a shrug by the court, stating that those "vicissitudes" of prison life were hardly "extraordinary." The entrusting of his file to fellow inmates to assist him was at his peril, and he did not specifically point to any document he really needed. Petitioner also failed to show his diligence. For these reasons, judgment of the district court dismissing the petition is affirmed. Petitioner, by the way, had received a life sentence.

U.S. v. Green, No. 08-10149 (1-22-10). The prosecutors convicted the defendant, a school teacher for 30 years, of masterminding a fraud scheme that bilked the government of $60 million. The scheme took advantage of a FCC program that funds technology projects in schools. Basically, she rigged bids. She arranged for vendors to bid on services to supply IT equipment to schools. The bids were high enough that the schools did not have to fork over their required payments. The bidders did not mind inflating their bids because they were assured of the job. The equipment lists were altered and the actual amounts hid to avoid auditing or inquiring by the funding agency. Eventually this all came crashing down. The defendant argued that she was just facilitating the grants and providing IT as was intended. Convicted of all counts, the court sentenced her to 90 months. On appeal, the 9th affirmed the convictions and sentences. Tashima, joined by Rymer and Adelman, D.J., discussed whether a wire fraud had to violate a specific law, federal, or state. Going through the statutes, the 9th was surprised to find a paucity of decisions on the point, but reasoned that wire fraud was a separate offense, and that one could break the law without breaking a specific rule or regulation of the agency. The 9th did find error in the jury instruction that made her vicariously liable to acts that were foreseeable to her co-defendants without narrowing the focus to her foreseeability (as in conspiracy cases). The error was harmless, though, because the evidence was overwhelming. Lastly, the 9th found the sentence was reasonable.

Case o' The Week: It's Not Easy, Being Green - US v. Judy Green, Wire Fraud and Underlying Criminal Activity

As Kermit complained, "It's not easy being green." That's particularly true if you're Judy Green, and are serving a ninety-month sentence for your first offense. The crime?

Excellent question.

Apparently, says the Ninth, it is a crime to use the wires to commit a fraud (even if you're not breaking a law while you're doing it). United States v. Judy Green, __ F.3d __, 2010 WL 200280 (9th Cir. Jan. 22, 2010), decision available here.

Players: Hard-fought trial by ND Cal CJA attorney Erik Babcock. Decision by Judge Tashima.

Facts: Judy Green, a former school teacher, became a consultant to help poor schools procure federal “E-Rate” funding to add telecommunication access. Id. at *1-*2. The E-Rate program subsidizes part of the costs for telecommunications installation – the school itself is responsible for purchasing “ineligible” equipment (like computers). Id. at *1.

Evidence at trial showed that Green colluded with vendors to inflate bids and, essentially, fraudulently shift “ineligible” costs (normally borne by the schools) into “eligible” expenses that the E-Rate program would subsidize. Id. at *2-*3. The government believes this scheme bilked the federal government out of $60 million dollars. Id. at *1.

The glitch was that under “E-Rate’s byzantine application process,” id. at *2, it wasn’t at all clear that what Green did was prohibited by the rat’s nest of regulations around this program. Id. Green lost at trial and was sentenced by the Honorable William A. Alsup to ninety months. Id. at *3.

Issue(s): “Green’s overarching contention on appeal is that her actions were not fraudulent because they were not prohibited by the rules and regulations that governed the E-Rate program during the time period charged in the indictment.” Id. at *3.

Held: “We conclude that the offense of wire fraud does not require that Green’s conduct violated a rule or regulation of the E-Rate program; thus, her specific challenges fail.” Id. at *3.

Of Note: Remarkably, this is essentially an issue of first impression in the Ninth Circuit - and maybe in any circuit. Id. at *4. Judge Tashima(below) begins by reviewing the analogous question of whether wire (or mail) fraud requires a violation of an underlying state law. Id. These federal fraud statutes do not have such a requirement, and from this the Court concludes that “it is settled that wire fraud does not require proof that the defendant’s conduct violated a separate law or regulation, be it federal or state law.” Id. at *5.

The scheme to defraud for mail or wire fraud must only include an “affirmative, material misrepresentation.” Id. at *5. “A defendant’s conduct need not otherwise be illegal in the sense that the government must also prove that the defendant’s conduct violated a specific statute or regulation.” Id. at *5.

Judge Tashima shrugs-off the concern that this rule leaves wire and mail fraud untethered to actual criminal conduct, and ripe for prosecutorial abuse (like honest services fraud). Id. at *5. Others, however, may be less sanguine about the government’s self-restraint. See, e.g., Barry Bonds in Context; see also, Former Brocade exec gets two months in prison for backdating options; see also Misguided Marijuana War, The New York Times (regarding Ed Rosenthal).

How to Use: The victory (such as it is) in United States v. Judy Green case is on vicarious liability. The jury instructions in the case allowed for Green’s vicarious liability for acts that were reasonably foreseeable to her co-schemers. Id. at *12. In a thoughtful discussion, Judge Tashima explains that this is incorrect: vicarious liability for wire (or mail) fraud is limited to acts that were reasonably foreseeable to the defendant alone. Id. Unfortunately, in this case this mistake was harmless error – but the principle bears remembering for future fraud jury instructions.

For Further Reading: If you pay for interstate phone calls, you’ve been subsidizing the program to get broadband into low-income schools. Great concept, lousy execution: the FCC’s “troubled” program has spawned a number of federal indictments across the country in addition to the Green case prosecuted in San Francisco. See article here.


Image of the Honorable Judge Tashima from http://www.totaldenialfilm.com/previewpic.php?pic=judge-Tashima.jpg&title=Federal%20Judge%20Wallace%20Tashima . Image of Kermit the Frog from http://halloweenswimteam.files.wordpress.com/2009/07/kermit.jpg .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Blog at www.ndcalfpd.org

.