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

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

Jason Dvorin appealed his conviction of conspiracy to commit bank fraud. Dvorin's appeal has been consolidated with the appeal of Mindy Sauter, the attorney who prosecuted defendant during his first trial. Dvorin asserted that the district court erred in: (1) denying his request for an apparent-authority jury instruction; (2) denying his request for a special unanimity jury instruction; (3) overruling his objections under Federal Rules of Evidence 701 and 704 to the government counsels’ and witnesses’ use of the terms “fraud,” “fraudulent check,” or “conspiracy”; (4) excluding extrinsic evidence of and cross-examination regarding the district court’s findings that Chris Derrington, Pavillion Bank's executive vice president, testified falsely in a prior proceeding; (5) declining to award sanctions for prosecutorial discovery misconduct; (6) admitting the testimony of Chase Bank representative Arthemis Lindsay despite the government’s failure to timely designate Lindsay as a possible witness on its witness list; and (7) permitting the government to add a forfeiture count to the second superseding indictment before the second trial and entering a forfeiture judgment at sentencing without having a jury find the facts essential to that judgment. Sauter contends that the district court erroneously found that she violated Brady, Giglio, and Napue and acted “recklessly” by failing to timely disclose Derrington’s plea agreement supplement. The court reversed the district court’s denial of Dvorin’s motion to dismiss the forfeiture account for prosecutorial vindictiveness because the presumption of vindictiveness applied in this case where the government added a forfeiture notice in the second superseding indictment, and the government failed to overcome this presumption. The court affirmed in all other respects. View "United States v. Dvorin" on Justia Law

Defendant pleaded guilty to an offense related to a scheme to defraud the DOE and the district court ordered each defendant involved in the scheme to pay restitution. On appeal, defendant challenged the district court's denial of the Government's proposed application of restitution payments to a codefendant (Otto). The court concluded that a more appropriate mechanism for the court to apply is a hybrid approach to restitution payments where multiple defendants are held liable for injuries caused by a common scheme. In this case, the district court’s concern - that requiring payment from Otto would render both Otto and another codefendant (Reed) responsible for restitution in excess of the loss attributable to their conduct - is misplaced. Payments requested by the defendants encompass overlapping injuries due to each defendant's conduct. The court concluded that any funds received by the defendants should be applied to the total sum owed by all defendants. In doing so, payments from Otto would also reduce the overall sum owed by defendant. Further, the district court's analysis similarly does not align with the Mandatory Victim's Restitution Act's (MVRA), 18 U.S.C. 3663A, rules regarding liability apportionment. Accordingly, the court reversed and remanded. View "United States v. Sheets" on Justia Law

In 2006, Boyd sent his income and expense information for 2004 to a tax specialist, who prepared a return showing a tax liability of over $27,000. Boyd did not file the return he received from the tax specialist. Instead, Boyd filed his tax returns for 2004, 2005, and 2006 in October 2007, having recently read a book called Cracking the Code, which espoused a theory that federal income tax obligations applied only to individuals who earned income working for the federal government. The three returns declared that in those years he had zero income and zero tax liability. During those three years, Boyd actually had continued the work he had done in prior years and had earned income totaling $795,000. Convicted under 26 U.S.C. 7206(1), Boyd argued that the government had not proven willfulness because it failed to show the absence of a good-faith belief that the he did not have to file returns or pay taxes. The Fifth Circuit affirmed, rejecting challenges to denial of funding for neuropsychologist testimony, admission of uncharged conduct, the prosecutor’s statements, the judge’s statements, the jury instructions, the response to a jury note, and the sufficiency of the evidence. View "United States v. Boyd" on Justia Law

Defendant, convicted of making false statements regarding a credit application, appealed his sentence and order of restitution. Defendant forged the signatures of borrowers on an application for modification to a loan related to a certain property. Because the district court neither made factual findings concerning defendant's conduct nor explained which statutes defendant violated, the court was unable to determine whether defendant's dealings with the home buyers and sellers were criminal. The district court made no findings of fact as to whether defendant's dealings with the home buyers and sellers were part of the same common scheme or whether his criminal acts must have actually caused these losses. Further, the district court erred by awarding restitution based on relevant conduct that went beyond defendant's offense of conviction. An award of restitution based on losses not resulting from the offense of conviction is an error that is clear and obvious. In this instance, the error resulted in an award of more than half a million dollars against defendant. Accordingly, the court reversed defendant's sentence and restitution award and remanded to the district court for resentencing. View "United States v. Benns" on Justia Law

Defendant, a licensed physician who operated an in-home physical therapy services provider for Medicare patients (CMPM), appealed her conviction for ten counts of healthcare and Medicare fraud arising out of her operation of CMPM. The court affirmed the district court's denial of defendant's motion to dismiss the indictment where the district court properly recognized the independent factual basis that existed to clearly state an offense in the indictment, mooting the need to address defendant's rule of lenity/ambiguity challenge; affirmed the district court's denial of defendant's motion in limine to exclude evidence regarding her license because it was irrelevant, and exclusion of certain articles and Medicare regulation changes because they were not available to defendant to rely on at the time of her fraudulent conduct; the district court did not err by denying defendant her constitutional right to be present at all critical stages of her trial; and the district court did not err in denying defendant's motion for a new trial based on ineffective assistance of trial. Accordingly, the court affirmed the conviction. View "United States v. Thomas" on Justia Law

Defendant and his co-defendant were convicted of charges related to their involvement in a scheme to defraud homeowners, home buyers, and mortgage lenders. Defendant appealed his sentence, challenging the district court's calculation of the loss amount and its application of the sentencing enhancement for "mass-marketing." In light of the court's precedent, the court could not say that the district court erred by employing an intended loss calculation and declining to account for the collateral's value, especially given the district court's factual findings that defendants did not intend to repay the mortgage loans here. The court also held that the district court did not err in imposing the mass-marketing enhancement under U.S.S.G. 2B1.1(b)(2)(A)(ii) where defendants used advertisements in newspapers that circulated to thousands of people and potentially more through online viewing. While defendants could have phrased their advertisements to sell one house to one person, they solicited thousands of potential buyers in order to find the one buyer for each property. Accordingly, the court affirmed the judgment. View "United States v. Morrison" on Justia Law

Defendant was convicted of one count of attempting to evade or defeat a tax; four counts of willful failure to file a tax return; and one count of attempting to interfere with the administration of internal revenue laws. Defendant appealed. Although the court granted defendant's motion to reconsider the clerk's denial of his motion to extend the time for filing a reply and allowed the brief to be submitted to the court, the court nevertheless concluded that the district court did not err in any respect. Because the court held that there were no merits to any of defendant's substantive points, and because the court held that the statute of limitations accrued from the last evasive act under 26 U.S.C. 6531(2), the court affirmed the judgment. View "United States v. Irby, Jr." on Justia Law

Defendant was convicted of ten counts of money laundering under 18 U.S.C. 1956, which prohibited individuals from laundering the "proceeds" of certain activities. After the Supreme Court held that "proceeds" meant "profits" rather than "gross receipts" in United States v. Santos, defendant moved for relief under 28 U.S.C. 2255 and appealed from the district court's denial of that motion. The court concluded that defendant did not argue on appeal that he was entitled to relief under the two-step analysis described in Garland v. Roy. Therefore, the court need not and did not resolve those issues. Because Garland prevented the court from uniformly defining "proceeds" as "profits" across the money-laundering statute, the court affirmed the judgment. View "United States v. Ghali" on Justia Law