Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

Defendant appealed his sentence and conviction for theft from a program receiving federal funds, money laundering, and payment structuring arising out of work he performed for the New Orleans Traffic Court. The court concluded that the evidence presented at trial, taken in the light most favorable to the government, was sufficient for a rational trier of fact to find that the elements of 18 U.S.C. 666, theft from a program receiving federal funds, were met. In the alternative, the court concluded that the application of section 666 to the unlawful conduct here is constitutional because the evidence was sufficient to establish an agency relationship between defendant and the entity receiving federal funds according to the statutory definition and the limiting principles described in United States v. Phillips. Finally, the court rejected defendant's evidentiary errors and defendant's challenge to the district court's grant of the government's reverse-Batson challenge. Accordingly, the court affirmed the judgment. View "United States v. Thomas" on Justia Law

Defendants Johnson and Everson were charged with conspiracy to prepare false and fraudulent income tax returns. The court concluded that the district court did not abuse its discretion in refusing to grant the Government's initial motion for waiver of a jury trial, there is no constitutional right to a non-jury trial, and defendants failed to assert a claim of prejudice before the district court and their requests for waiver of a jury trial were intelligently made. The court also concluded that the district court did not clearly err in adopting the PSR’s calculation method in estimating the amount of tax loss generated by defendants' fraudulent activity. Finally, the court concluded that the time frame allotted to defendants to prepare their defense did not constitute plain error. Accordingly, the court affirmed the judgment. View "United States v. Johnson" on Justia Law

Defendant pled guilty to a multi-count indictment for crimes related to his involvement in a fraudulent Medicare scheme. On appeal, defendant challenges his 97 month sentence. The court concluded that defendant's principal argument that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause is foreclosed by precedent; defendant waived his argument that even if the 2009 Guidelines apply to his sentence, the Medicare beneficiaries were not “victims” within the meaning of the 2009 definition but were more like co-conspirators; and defendant's remaining claims are without merit. Accordingly, the court affirmed the sentence. View "United States v. Shakbazyan" on Justia Law

Defendant was convicted of mail fraud for his part in a scheme to procure life insurance policies by misrepresenting the applicants’ net worths and their intention to transfer the policies to a third party. On remand for resentencing, the district court applied an 18-level enhancement to defendant's base offense level due to the actual loss caused by defendant's scheme to insurers and a lender. With respect to the district court’s findings on the insurers’ actual loss, the court concluded that neither the law of the case doctrine nor the mandate rule required a finding of zero actual loss by the insurers at resentencing. The court also concluded that defendant did not waive his challenges to the actual loss suffered by the lender; the district court did not err when it declined to factor Portigon’s sale of its portfolio to EAA into its actual loss calculation and instead calculated the actual loss amount based on the time of the first sentencing; the district court’s decision to base its actual loss calculation solely on the inactive policy loans was a “reasonable estimate of the loss” based on the information available to the court; and the district court did not commit clear error in finding that the actual losses to the insurers and the lender were “reasonably foreseeable pecuniary harm that resulted from [Bazemore’s] offense.” Finally, the court concluded that defendant waived his arguments regarding the proffer agreement and waived his Apprendi challenge. Accordingly, the court affirmed the judgment. View "United States v. Bazemore" on Justia Law

Defendant plead guilty to theft of government property, in violation of 18 U.S.C. 641, for his unlawful receipt of social security benefits, and was sentenced to 18 months’ imprisonment. The court concluded that the district court did not err in applying a two-level enhancement under USSG 2B1.1(b)(11)(C)(i) for using an unauthorized means of identification to obtain another means of identification. The court concluded that defendant created fraudulent accounts in 2008 and 2011 without authorization; defendant's conduct fell within the ambit of USSG 2B1.1(b)(11)(C)(i) and 2B1.1 cmt. n.1; and the plain meaning of the phrase "actual" does not distinguish between living and deceased persons. As the Government demonstrated, the court has affirmed application of the Guideline outside the context of credit fraud, and applied the enhancement under circumstances factually analogous to those at hand. Finally, the court concluded that the rule of lenity does not preclude the application of the enhancement. Accordingly, the court affirmed the judgment. View "United States v. Suchowolski" on Justia Law

Defendants Gladstone and Jacqueline Morrison appeal their convictions for conspiring to submit fraudulent tax returns, aiding and abetting the filing of numerous false returns, and wire fraud in connection with the attempted sales of the business. The court concluded that the evidence supports all of Gladstone's wire fraud convictions; the district court did not commit reversible error in limiting Jacqueline's testimony; the instances of bias alleged by Jacqueline, alone or taken together, do not rise to the level at which recusal is required; and the court rejected Gladstone's challenges regarding the conduct of the trial judge. Finally, the court rejected Jacqueline's additional claims of error. Accordingly, the court affirmed the judgment. View "United States v. Morrison" on Justia Law

Defendant appealed his conviction and sentence for multiple counts of bank fraud and related offenses. The court concluded that defendant has not cited any authority recognizing his proposed exception to Franks v. Delaware, and the court declined defendant's invitation to create a new exception to well-established Supreme Court precedent; the district court did not abuse its discretion in applying a six-level enhancement under USSG 2B1.1(b)(2)(C) for an offense committed with over 250 victims; the district court did not err by applying an eighteen-level enhancement under section 2B1.1(b)(1)(J) because the district court's calculation that defendant's total intended loss was between $2,500,000 and $7,000,000, was not unreasonable; and defendant's request for remand is foreclosed by United States v. Garcia-Carrillo. Accordingly, the court affirmed the judgment. View "United States v. Minor" on Justia Law

Defendant appealed his conviction and sentence for sixteen counts of wire fraud under 18 U.S.C. 1343. Defendant's conviction stemmed from his involvement in a scheme to obtain government procurement contracts set aside by the Small Business Administration for minority-owned small businesses. The court concluded that sufficient evidence supports the convictions. However, the court concluded that government contracts awarded through an affirmative action contracting program are not “government benefits” under USSG 2B1.1 cmt. n.3(F)(ii), such that procurement frauds involving those contracts are properly treated under the special government benefits rule for loss calculation rather than under the general rule. Therefore, the district court should have applied the general rule for loss calculation in this case. The court concluded that the loss amount should have reflected not the total contract price, but rather the contract price less the fair market value of services rendered by the Joint Venture to the procuring agencies. By treating the entire face value of the contracts as loss for purposes of section 2B1.1 and not deducting the fair market value of services rendered by the Joint Venture, the district court procedurally erred in calculating the Guidelines range in this case. Accordingly, the court vacated the sentence and remanded for resentencing. View "United States v. Harris" on Justia Law

Defendant was convicted of one count of conspiracy to commit health care fraud, seven counts of health care fraud, and seven counts of aggravated identity theft. Defendant was sentenced to 135 months' imprisonment and ordered to pay $599,128.02 in restitution. The court concluded that there was sufficient evidence to convict defendant of the charges, and the district court did abuse its discretion in denying defendant's motion for a new trial without first holding an evidentiary hearing where defendant's arguments rest on either non-exculpatory testimony or conclusory assertions. However, the court concluded that the district court abused its discretion by calculating the total loss suffered by the victims because the district court procedurally erred by failing to credit defendant for the fair market value of legitimate health care services that his hospitals rendered to patients. Therefore, the court vacated defendant's sentence, as well as the restitution order. The court remanded for resentencing. View "United States v. Mahmood" on Justia Law

Defendant, in an attempt to shield a residential property from foreclosure, transferred his assets through two entities and caused three bankruptcies to be filed. The district court convicted defendant of bankruptcy fraud in violation of 18 U.S.C. 157(3). The court rejected defendant's claims regarding constructive amendments to the indictment, concluding that defendant's conviction was based on the 2007 scheme to defraud alleged in the indictment and not a different or broader scheme; the district court did not plainly err in formulating the elements of the bankruptcy fraud conviction; and the district court’s formulation of the indictment’s misrepresentation did not constructively amend the indictment, and there is no plain error. Finally, the court concluded that the evidence was sufficient to convict defendant and the district court's findings are supported by substantial evidence. Accordingly, the court affirmed the judgment. View "United States v. Chaker" on Justia Law