U.S. v. Jinian, No. 11-10593 (03-26-13) (Murguia with Nelson; concurrence by Christen)
When the cat's away, the mice will play...or defraud. Here, the board of directors was in Europe; the defendant was the CEO. He authorized the cutting of checks from one company under his control in excess of his salary, and to get advances. He eventually got caught and charged with numerous counts of wire fraud. His defense was that there was no wire fraud as the checks were deposited in a bank, and he got the funds. The fact that the fraudulent checks were transferred subsequently over wire to another bank was not part of his scheme. Yes it was, concluded the 9th. The scheme was ongoing, and the deposit of the checks required their clearing, or the scheme would have stopped. The 9th also held that there was no need to read a materiality or intent into the interstate requirement. Christen concurred to emphasize that the scheme itself was not a one-off or one time act, but ongoing. This ongoing nature required the checks to be paid, and so it required wire transfer.
U.S. v. Ruiz, No. 10-50211 (Paez with Conlon; concurrence by Pregerson)
The defendant was convicted of being a felon in possession. He was chased, and threw a box over the fence, which had shotgun shells, and when he was caught, a rifle was found nearby. The defense was "what rifle?" and "that wasn't my box." A statement claiming ownership was disputed. At trial, it became a credibility issue. In closing, the prosecutor argued that to believe the defendant, the jury had to conclude that the officers were lying...all by way of PowerPoint. Defendant only objected to one slide (lying) and so other egregious behavior was decided by the plain error rule. Even with the objection, the 9th concluded that any error was harmless. Yet, the 9th took the prosecutor to task for presenting such a dichotomy. The opinion overviews the cases that forbid such argument (to acquit you must find the officers lying). The officers could be mistaken, or the evidence was not beyond reasonable doubt. The 9th also found that the indictment was not duplicitous because the defendant possessed the rifle and ammunition in one span of 10 minutes. It did not have to be separated. Pregerson concurred, admonishing the government for its argument.