United States v. Shaw, No. 13-50136 (Schroeder with Pregerson and Nguyen) ---
The Ninth Circuit affirmed a conviction for bank fraud under 18 U.S.C. § 1344(1), holding that the jury was properly instructed that a scheme "to defraud a financial institution" did not require the government to prove under that subsection that the defendant intended only to defraud the bank, not that the defendant also intended for the bank to suffer the financial loss as a result of the defendant's fraudulent conduct. Last year the Supreme Court held, in Loughrin v. United States, 134 S. Ct. 2384 (2014), that the two different subsections of § 1344 created two different crimes, and that subsection (2), which is not at issue in this case, did not require the government to prove either intent to defraud or intent to cause a financial loss on the part of the bank. But subsection (1) does require an intent to defraud by its very terms. Even so, Ninth Circuit precedent, including United States v. Wolfswinkel, 44 F.3d 782 (9th Cir. 1995), did not require proof of intent to cause the bank to suffer a financial loss. Nothing in Loughrin changed that precedent. Nor was the court persuaded by cases from other circuits that decided the issue the other way.
The decision is here:
United States v. Moe, No. 13-30244 (opinion by Clifton, concurring opinion by Hurwitz, M. Smith also on panel)
--- The Ninth Circuit affirmed a conviction for conspiracy to possess a controlled substance with intent to distribute, holding that the evidence was sufficient under the "buyer-seller rule" and that the district judge was not required to instruct the jury about that rule under the facts of this case.
The "buyer-seller rule" is an exception to the general principles of conspiracy liability. An agreement to sell drugs is, strictly speaking, a conspiracy, because it requires two people to agree to commit a crime. But because conspiracy requires an agreement to commit a crime other than the sale of the drugs, when the conspiracy involves only parties to the drug sale, the government must show that the buyer and seller had a criminal agreement that extended beyond the sale of the drugs between them. The court listed ten different factors that bear on the existence of an agreement beyond the sale of the drugs.
Here, the defendant lived in Helena, Montana, and her supplier lived in Spokane, Washington. She traveled to Spokane on seven occasions over the course of a year, bought half an ounce of methamphetamine each time, kept in frequent contact with her supplier, and even had a code for when supplies were low or the police were on to them. This evidence was sufficient to establish conspiracy, and thus the court rejected her challenge to the sufficiency of the evidence based on the buyer-seller rule. Moreover, under the particular circumstances of this case, the court concluded that the other jury instructions adequately conveyed to the jury the difference between a conspiracy and a mere buy-sale transaction, even as the court repeatedly stressed that the difference between the two was sometimes ineffable. A defendant is not entitled to have the jury instructed using particular words, after all.
Judge Hurwitz concurred, urging the court to follow the Seventh Circuit's rule of requiring a buyer-seller instruction in all cases.
The decision is here: