In U.S. v. Kennard, No. 05-12742 (Dec. 15, 2006), the Court affirmed the convictions of two brothers for bilking hundreds of churches and other non-profit organizations out of millions of dollars.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.
