In United States v. Feldman, No. 17-13443 (July 30,
2019) (William Pryor, Newsom, Branch), the Court affirmed the
defendant's wire-fraud conspiracy and money-laundering conspiracy convictions
over various challenges.
First, the Court held that Double Jeopardy did not bar the
defendant's re-trial for on an alternative theory of liability for which the
jury made no finding in his first trial.
Nor did the jury implicitly acquit the defendant on that theory by
finding him guilty on the alternative theory.
Moreover, the defendant implicitly consented to the dismissal of the
jury without it making a finding.
Second, the Court held that the evidence was sufficient to
support his convictions for conspiracy to commit wire fraud and conspiracy to
commit money laundering.
Third, the Court found no constructive amendment of the
wire-fraud conspiracy count. With
respect to the defendant's argument that a jury instruction constructively
amended the indictment, the Court found invited error because defense counsel
responded to the court's instruction by stating "that's fine."
Fourth, the Court rejected the argument that the defendant,
who is Jewish, was deprived of due process when the prosecutor analogized his
conduct to that of Fagin from Oliver Twist.
The government never referred to ethnicity or any stereotype, but rather
made only anodyne references to a literary character as an example.
Finally, the Court found no reversible error at
sentencing. The Court found no clear
error in connection with the loss amount and ten-or-more victim enhancement. The Court found no clear error in an
obstruction of justice enhancement based on a finding that the defendant
committed perjury in his first trial.
The Court found no error in applying the sophisticated money-laundering
enhancement. Finally, the Court upheld
as substantively reasonable an upward variance based on the defendant's lack of
remorse and perjury.
Judge Pryor authored a lengthy concurring opinion
criticizing the Court's decision in Takhalov, which had vacated the
defendant's convictions based on its interpretation of the "scheme to
defraud" element of wire fraud.
Although it was unnecessary to apply that interpretation to resolve this appeal,
he opined that, depending on how it was interpreted, the decision was likely at
odds with the common law of fraud. He
warned the bench and bar to "exercise due care in interpreting our opinion
in Takhalov and determining its precedential value."
