Tuesday, July 08, 2008

U.S. v. Salman, No. 05-10093 (7-7-08). Defendant said "the check's in the mail" to the IRS, and actually submitted a "sight draft." Never heard of it? Well, the IRS wasn't too keen on this type of instrument that is non-negotiable and is essentially an instrument paid only between two parties and, well, it was fictitious. Defendant's attempt to ante in this Texas Hold'em tax game was $250,000. The IRS was not amused, called the bluff, and the sight draft was cited as fraudulent, and charges were brought under 18 USC 514(a) for passing a fictitious instrument. The defendant was convicted at trial; his defense was (not helped by his calling a witness who testified they researched how to create fictious sight drafts (is there a web seminar on this?). On appeal, he raises the argument that the instrument fell outside of the statute's scope because it was npt negotiable, and it did not have the hallmarks of an actual obligation. "Nice try," said the 9th. The 9th (Gould joined by Tashima and McKeown) found that it did fall within the meaning of 514, and that the reach of 514 covered not only the sight draft but also the victim (i.e. the government).

U.S. v. Fuller, No. 07-30114 (7-8-08). Sometimes you have to ask, "what was he thinking?" This is one of those cases. The defendant drove up to a POE on the Idaho/Canadian border, and asked the border agents if he could deposit his gun for safe-keeping during his visit to Canada (no guns allowed) because he was an off-duty law enforcement officer. "Sure," the agents said, "and by the way, who are you with?" "Oh," he said, "I am a Special Response Agent." (Using air quotes?) He then showed them a badge, and gave them an identification card that read "United States Special Response Department Anti-Terrorism Unit." Pressed further, the defendant (you see where this is going) said this was a State Department unit. He then leaves. Maybe he was a fanboy of law enforcement, or pretexting, but after he returned a week later, he was arrested. While he was gone, the border agents, thinking his statement was a mondegreen, checked with headquarters, and discovered there was no such unit and that the defendant was not law enforcement, off-duty, or duty. The government, concerned he might be a wingnut (dirty bomb?), did not give him a mental health day, but prosecuted him for possession of an identification document that appears to be issued by the U.S. which is stolen or produced unlawfully (18 USC 1028(a)(6)). The facts were not in dispute; the trial was quick; and the issue presented was whether the government had to prove that the identification document appeared to be issued by a real U.S. agency. The 9th ( Tashima joined by Kleinfeld and Tallman) hold that it does not. The 9th concluded that the documents did not have to be purportedly from an actual agency under the statute; it had to be enough to create a presumption or to be understood as being issued by the U.S. The 9th went on to clarify that the government had to prove two elements in this offense: (1) the document appeared to be for identification and appeared to be issued by the U.S.; and (2) the defendant knew the document was stolen or produced without U.S. authority. The indictment stated the elements; the instructions sufficiently captured that the document had to be produced by the authority of the U.S., and the government's burden was not shifted to the defendant. There was also sufficient evidence the government proved those elements here.


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