Wednesday, November 25, 2009

U.S. v. Mohsen, No. 07-10059 (11-25-09). At trial, defendant was convicted of conspiracy, fraud, perjury, subornation of perjury, obstruction of justice, and contempt of court. On appeal, he raised numerous issues attacking the sufficiency of evidence, jury instruction error, prosecutorial misconduct, and sufficiency of the evidence. In a per curiam opinion, the 9th (B. Fletcher, Kleinfeld, Duffy) affirmed the convictions and sentences. Turning to the more interesting issues, defendant argued that he should have gotten an instruction on substantive patent law (the offense involved fraud and perjury in relationship to patents). The 9th pointed out that since he did not asked for an instruction, review was for plain error. The 9th found that the case was about fraud, and not patents, and so there was no error. The 9th found error in the court sending a note to the jury when they requested a copy of the indictment. Counsel and defendant should have been present. However, the error was not structural and was harmless. In the context of the contempt of court, this charge arose when the defendant sought to apply for a passport to possibly flee in violation of the pretrial release. The 9th held that a grand jury could bring such a charge, and that evidence of the "plan" discovered in a note with his wife's name violated the marital privilege. The discovery was pursuant to a search warrant to search for evidence of witness tampering, solicitation of a crime of violence, obstruction, and faking mental illness or incompetence. There was no evidence presented that defendant intended to deliver this message to his wife. There was no Massiah violation because the search concerned different crimes, and there was sufficient evidence (applications for an Egyptian passport, reservations for travel, visits to consulates, and copies of documents). In terms of prosecutorial misconduct, the 9th concludes that: "I think" therefore I err. The prosecutor's rhetorical device of stating "I think..." during closing argument was error but it was harmless. Defendant's IAC claims need to be developed in post-conviction proceedings. The court did not err in finding 40 million dollars of intended loss, and a +17 adjustment was not error.


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