In United States v. Waters, No. 18-11333 (Sept. 10,
2019) (Ed Carnes, Julie Carnes, Clevenger), the Court affirmed the
defendant's wire fraud conviction and sentence.
First, the Court found no abuse of discretion in declining
to give the Takhalov-based wire fraud instruction proposed by the
defense. The Court found that the
proposed instruction, which sought to distinguish between defrauding and
deceiving, was an incomplete statement of the law and would have confused the
jury. The Court also found that the
proposed instruction did not seriously impair his ability to present his
theories of defense.
Second, and applying a deferential standard of review due to
the defendant's failure to renew his motion for judgment of acquittal at the
close of the evidence, the Court found the evidence sufficient that the
defendant intended to harm the victim of the fraud. The Court rejected the defendant's argument
that, under Takhalov, lies about his creditworthiness to a lender did
not affect the benefit of the bargain between the parties, as there was ample evidence that these lies sought to cover up an issue that threatened to kill the deal.
Third, the Court rejected the defendant's argument that the
district court erred by not making an on-the-record waiver inquiry about his
decision not to testify at trial. Although
there is no per se rule requiring that inquiry, the defendant argued
this case was exceptional because he was the only person in a position to
refute the prosecution's case. The Court
rejected that as a ground for relief because it did not establish his decision
to remain silent was involuntarily made.
Lastly, the Court found no plain error with regard to an erroneous factual comment made by the judge after sentence had been imposed. The judge inaccurately stated that the
defendant had gotten a break because the loan had been repaid, when in fact
there was never a loan to repay. But
this "slip up" was a "stray comment" at the end of
sentencing, not a relevant factual finding.
And the Court found no prejudice because the judge otherwise had an open
mind and explained why he thought the defendant did deserve leniency.
