Tuesday, January 13, 2009

U.S. v. Kaczynski, No. 06-10514 (1-9-09). This case involves the Unabomber, and the sale of seized property to satisfy restitution. The victim restitution statute survives the defendant's facial challenges, and as applied arguments. His First Amendment rights are not curtailed, and by getting copies of his papers, which will be sold, he still can express his ideas.

U.S. v. Awad, No. 06-50578 (1-12-09). The defendant was charged and convicted of numerous counts of Medicare fraud. Defendant authorized medical treatments without really examining the patients, especially in regards to respiratory ailments. Convicted, he appealed, alleging errors in the indictment and jury instructions. The 9th (Graber joined by Clifton and Reed) affirm, holding that the indictment did indeed omit the word "wilful" from the charge, but the facts alleged made clear that the defendant's acts were done with a bad purpose. The jury instructions also omitted "wilful," and stated that the defendant need not know his acts were unlawful. This was error, but it was harmless because the evdience and the acts of the defendant clearly show that he was acting unlawfully, and with knowledge of his unlawful acts. The sentencing enhancement he received was also affirmed because he did put his patients in physical danger by his rubber stamp actions.


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