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US v. Castaneda-Pozo, 11th Cir., filed 12/19/17; Sentencing Issues for Fraud Convictions; Intended Loss and Substantial Financial Hardship

January 2nd, 2018
Elizabeth Franklin-Best

The Eleventh Circuit finds not-entirely-credible testimony of co-defendants sufficient to support making defendant entirely liable for intended loss, and substantial financial hardship applies even when victims don't have to sell their Rolexes.  The appellant in this case, Mr. Castaneda-Pozo appealed two aspects of his sentence.  First, he argued that the district court erred in finding him responsible for the scheme's entir

United States v. Blue, 4th Cir., filed 12/12/17: Vacate and Remand on Sentencing Issue; Judge did not adequately consider Blue’s non-frivolous arguments in favor of downward departure

December 13th, 2017
Elizabeth Franklin-Best

The Fourth Circuit finds sentence procedurally unreasonable when district court did not adequately address a defendant's nonfrivolous arguments that he should receive a downward departure.   Blue pleaded guilty to armed robbery and brandishing a firearm during a crime of violence.  Probation prepared its usual presentence report (PSR) and recommended a sentence of 188 to 235 months' imprisonment for the robbery, and a consec

US v. Diaz, 9th Cir., filed 12/6/17: The Limits (or Not!) of Expert Witness Testimony in White Collar Criminal Case

December 8th, 2017
Elizabeth Franklin-Best

I find this opinion disturbing because I think too often government expert witnesses are allowed too free rein in their testimonies in the first place, to the obvious disadvantage of criminal defendants, and this decision clearly will not be slowing down that train anytime soon.  Here, the Court did not find error when the government's expert witness cou

US v. Elliot, et al., 6th Circ., filed 11/30/17, Honeycutt Remand on Forfeiture Issue

December 5th, 2017
Elizabeth Franklin-Best

Abolishment of joint and several liability for forfeitures pursuant to §853(a)(1) of the Comprehensive Forfeiture Act of 1984. The defendants in this case were convicted of being participants, in varying roles, in a "pill mill" scheme. Located in Florida, they were indicted in the Eastern District of Kentucky for conspiracy to distribute oxycodone in that area.  As the government proved at trial, numerous purchasers of the o

United States v. Pleitez, 5th Cir., filed 11/22/17: Increase in Restitution Award Without the Assistance of Counsel Reversed; Restitution Increase “Critical Stage” of Criminal Proceeding.

November 29th, 2017
Elizabeth Franklin-Best

This is an interesting case addressing the fundamental right to an attorney at all "critical stages" of a trial proceeding. I don't believe I've seen this particular issue arise before, so it caught my attention. This is an immensely important decision for criminal defendants facing mandatory restitution obligations. Pleitez pleaded guilty to a number of charges that re

Burgess v. United States, 11th Cir., filed 11/6/17, Court Vacates §2255 Denial When Judge Sua Sponte Raises Procedural Bar

November 16th, 2017
Elizabeth Franklin-Best

The 11th Circuit holds that Court cannot invoke a procedural bar, on its own accord, to deny a petitioner's claim in a federal post-conviction action. The petitioner here pleaded guilty to wire fraud and money laundering.  As part of this plea agreement, he did what every other defendant is unfairly forced to do-- he waived his right to appeal, which also included his right to collaterally challenge his conviction (except as

United States v. Walton, 7th Cir., filed 11/3/17: Honest Services Fraud, and Enhancements for Sensitive Position and Vulnerable Victims

November 7th, 2017
Elizabeth Franklin-Best

This appeal arises from the conviction of two men who were part of a larger scheme to sell properties owned by the Indianapolis Land Bank to selected non-profits at incredibly low rates, and then resold to private purchasers for profit. Kickbacks ensued. Walton was the manager of the Land Bank, a public agency that was authorized to acquire distressed properties.  Walton’s position gave him the authority to buy and sell the property, with litt

United States v. Palin, 4th Cir., filed 10/30/17: A Case Addressing Materiality in Light of United Health Services, Inc.

October 31st, 2017
Elizabeth Franklin-Best

The Fourth Circuit rejects claim that Universal Health establishes a "new standard of materiality" but finds that even if it did, appellants here lose.   The appellants here, a married couple, Ms. Palin and Mr. Webb, were convicted after a 2-week bench trial of heath care fraud and conspiracy to engage in health care fraud, in violation of 18 USC §§1347 and 1349.  Their central claim on appeal is that the district c

Sawyer v. United States, 2017 WL 4700089 (7th Cir, unpublished, 10/20/17): Evidentiary Hearing Required Even If Petitioner’s Claims Are Self-Serving.

October 29th, 2017
Elizabeth Franklin-Best

This case serves as a very good reminder of a petitioner’s burden in a habeas petition, and the Court’s proper regard for a petitioner’s allegations. Petitioner’s claim in this case is that his lawyer provided ineffective assistance of counsel by urging him to reject a plea offer of 15 years (after trial, petitioner received 50 years).  In his 2255 motion, petitioner specifically alleged that the government offered him a 15-year plea off

SEC v. Kahlon, 5th Cir., filed 10/16/17: Court Upholds Lower Court’s Penalty of Permanent Injunction from Trading Penny Stocks.

October 23rd, 2017
Elizabeth Franklin-Best

The Court held the Appellants violated SEC regulations by improperly selling and trading penny stocks in Texas, a state with which Appellant had very limited contact. Kahlon was the sole officer, owner, and employee of TJ Management (TJM), a New York limited liability company formed in 2003. In 2005, the company bought 100 acres of vacant property in Texas. That year, Kahlon registered TJM as a foreign limited liability compan

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RECENT POSTS

US v. Castaneda-Pozo, 11th Cir...
January 2nd, 2018

United States v. Blue, 4th Cir...
December 13th, 2017

US v. Diaz, 9th Cir., filed 12...
December 8th, 2017

US v. Elliot, et al., 6th Circ...
December 5th, 2017