Young: Battery Involving Fluids is 4B1.1 crime of violence

In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force." The Court noted that "physical force" is different from "violent force." The statute at issue requires the violator to cause the child to come into contact with bodily fluids by "throwing, tossing, projecting, or expelling" the fluids, that is, it requires a physical act, directed against a person, and the "minimal contact" of the impact of the fluids satisfies this requirement.

Newland: No ineffectiveness in failing to establish confession was coerced

In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant’s wife with aggravated assault, and murder, to establish that the defendant’s confession was coerced. The Court noted that the defendant waited a full day after hearing the threats before confessing, and, in addition, the wife could have been charged with a crime in connection with the murder.
The Court also rejected the argument that counsel was ineffective for failing to investigate Newland’s background, which would have helped him find mitigating evidence and avoid the death penalty. The Court declined to fault counsel for not uncovering evidence about the defendant’s childhood and neurological disorder, because the defendant himself opted not to have counsel pursue these matters. The Court also declined to fault counsel for failing to rely on these matters at sentencing, noting that counsel’s strategy of portraying the crime as a single aberrant episode was less problematic than relying on a history of disorders.

Williams: No Organizer Enhancement where Husband was not criminally responsible

In U.S. v. Williams, No. 06-15318 (May 16, 2008), the Court affirmed the convictions of a defendant convicted of fraud in connection with the unauthorized use of federal grant moneys to a daycare center, but reversed parts of the sentence.
Reviewing for plain error, the Court rejected Williams’ Double Jeopardy claim that her conviction for theft of federal funds was duplicative of her conviction for wire fraud. Applying the Blockburger test, the Court noted that unlike wire fraud, federal theft involves no use of interstate wires. Thus, the crimes have different elements.
The Court also rejected the argument that the seven counts of wire fraud were multiplicitous. The Court pointed out that wire fraud punishes separately each execution of a scheme, and the government was therefore justified in charging Williams for each time funds were wired into Williams’ account as a result of her fraud. The Court found no bad faith on the part of the government in making seven separate wire transactions.
The Court also rejected Williams’ challenge to the sufficiency of the evidence, noting the testimony of employees who were fired by Williams after they questioned her use of federal funds.
The Court rejected Williams’ claim that the jury instructions amended the indictment when they instructed the jury that bookkeepers could be considered accomplices in the crime. The Court found that in light of the evidence presented, this was not what the instructions meant.
Turning to the sentence, the Court reversed the district court’s imposition of a two-level "organizer" enhancement. The enhancement was based on the defendant’s supervision of her own husband’s participation in the theft. The Court noted that the husband was acquitted of theft, but pointed out that this acquittal of itself did not bar the wife’s sentence enhancement, because different standards of proof exist at trial and at sentencing. However, the Court found the evidence was insufficient to show that the husband was "criminally responsible" for theft or fraud.
The Court also reversed the imposition of an "abuse of trust" sentence enhancement. The Court noted that the abuse of trust enhancement requires the defendant to have been in a fiduciary relationship to the victim. Here no such relationship existed between Williams, her firm, and the government agency from which she received grants. The Court further noted that the base offense level for Williams’ fraud already accounted for her violation of her grant conditions.
The Court affirmed the imposition of an obstruction enhancement, based on Williams’ alteration of accounting records once she became aware of the government’s investigation.

Hendrix: Judge's Appearance of Bias not a basis for habeas relief

In U.S. v. Hendrix, No. 07-12117 (May 13, 2008), the Court denied habeas relief to a Florida death row inmate sentenced.
The Court rejected Hendrix’ challenge to the refusal of the state court judge to recuse himself. The Court noted that Hendrix bore the burden of showing that the presiding judge had considered matters not disclosed to the defendant. The Court added that the mere "appearance of bias" was insufficient to warrant habeas relief.
The Court also rejected the claim that trial counsel was ineffective for failing to call an additional mental health expert, pointing out that this expert wrote that the defendant committed a "calculated" murder, and did not suffer from a mental defect.
Finally, the Court concluded that undisclosed evidence was not "material" to Hendrix’ trial in view of the other overwhelming evidence against him.

Ferguson: Faretta Habeas Claim requires review of state trial transcript

In Ferguson v. Culliver, No. 07-13030 (May 13, 2008), the Court reversed the denial of habeas relief to an Alabama inmate.
The defendant claimed that the Alabama state trial court denied him his Faretta right to self-representation. In habeas proceedings, the State did not produce the transcripts of Ferguson’s trial, but instead relied on an appellate court decision which had affirmed the denial of Farretta relief. The Court held that the district court erred in merely relying on an appellate court decision in denying habeas relief. The district court should have reviewed the trial transcripts for its determination of this "fact-intensive" issue.

Padron: Criminal Forfeiture of Money Applies to Fraud

In U.S. v. Padron, No. 07-11228 (May 13, 2008), the Court affirmed the conviction and sentence of a defendant convicted of a mail fraud scheme arising out of a personal injury clinic that obtained money from insurance companies by submitting false claims.
The Court rejected the argument that an acquittal should have been directed because the defendant was entrapped. The Court relied on evidence that showed that Padron was predisposed to commit the fraud.
Turning to the sentence, the Court affirmed the district court’s calculation of the loss amount, pointing that the Guidelines hold a defendant accountable for "the full intended loss amount." The Court also rejected the argument that the district court lacked jurisdiction to enter a judgment of forfeiture with regard to money. The Court noted that criminal forfeiture applies in every case for which civil forfeiture is authorized, and civil forfeiture, in turn, applies to all "specified unlawful activity" – and fraud is listed as a specified unlawful activity.

Williams: Coca Cola Trade Secrets Theft Judgment Affirmed

In U.S. v. Williams, No. 07-12526 (March 20, 2008), the Court affirmed convictions and sentences imposed on two defendants who attempted to sell Coca-Cola trade secrets to Pepsi, in violation of 18 U.S.C. § 1832(a)(1), (3) and (5).
The Court rejected the argument that defense cross-examination of a cooperating prosecution witness was unduly limited, pointing out that defense counsel had already presented the jury with substantial evidence to draw a fair inference about the witness’ credibility, and that the witness’ further testimony would not have given the jury a different impression.
The Court also rejected the argument that the trial court unduly limited the closing argument when it instructed the jury that defense counsel’s explanation of "reasonable doubt" was inaccurate, when he compared the concept to a patient’s desire for a second opinion when told of the need to have both legs amputated.
The Court also found no reversible error in the district court’s use of his own open-heart surgery example to describe "reasonable doubt," pointing out that, after counsel objected, the court gave a curative instruction.
Turning to the sentences, the Court upheld the 96-month and 60-month above-Guideline sentences as reasonable. Emphasizing the deference now owed district court in weighing the § 3553(a) factors, the Court cited, without criticism, the district court’s reference to the harm that Coca-Cola would have suffered had the defendants succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.

Harris: Search of Cab Passenger Compartment Did not Violate 4th Amend.

In U.S. v. Harris, No. 07-13473 (May 8, 2008), the Court affirmed the denial of a motion to suppress a firearm found after a search of a taxi in which the defendant had been riding.
An Atlanta, Georgia, police officer saw Harris remove what appeared to be a handgun from bushes, and get into a taxi. The officer followed the cab, and pulled the cab over when the cab failed to use its turn signal when changing lanes. The officer searched Harris and found nothing on him. The officer then asked the cab driver for consent to search the cab, and found a .357 magnum under the floor mat. Harris, charged with being a felon in possession of a firearm, moved to suppress the firearm on the ground that the search violated the Fourth Amendment.
The Court noted that the officer had probable cause to stop the cab, because of the failure to use a turn signal during a lane change. The officer also had reasonable suspicion to search Harris’ person, as an investigatory Terry stop.
Turning to the search of the cab, the Court noted that Harris had an expectation of privacy in the passenger compartment, because he closed the door to the cab when he got out of the car. However, this expectation of privacy did not trump the cab driver’s consent to the search of the cab – a consent on which the officer reasonably relied, because Harris stayed silent, and "never expressed disagreement with the driver’s consent."
The Court also rejected Harris claim that his statements given to federal law enforcement officials should have been suppressed, because at the time he was represented by counsel in pending state proceedings, and his right to counsel had therefore attached – citing U.S. v. Burgest, 2008 WL 659550 (11th Cir. March 13, 2008).

Hunt: Affirming police officer's false report obstruction conviction

In U.S. v. Hunt, No. 06-16641 (May 5, 2008), the Court affirmed a conviction and sentence for making a false entry in a police report with the intent to impede an FBI investigation.
Hunt, a Prichard, Alabama police officer, was involved in an arrest where he threw the person to the ground, causing injury and permanent hearing loss. In his police report, however, Hunt stated (falsely) that he had been grabbed first by the person under arrest.
The Court rejected the argument that the statute of conviction, 18 U.S.C. § 1519, was unconstitutionally vague. Though the statute was passed as part of the Sarbanes-Oxley Act, its application need not be cabined to the corporate malfeasance at which the Act was targeted, so long as the plain language does not produce absurd results.
Citing the language of § 1519, the Court also rejected the argument that the statute contemplated only alterations of a pre-existing document, not, as here, the making of a false entry upon a document’s creation.
The Court also rejected a challenge to the sufficiency of the evidence on the question of whether Hunt intended to obstruct an FBI investigation. The Court noted a number of pieces of circumstantial evidence – including the fact that Hunt stuck to his false story more than a year after the incident – from which the jury could reasonably infer the intent element.
The Court rejected Hunt’s challenge to his sentence of five months imprisonment, followed by five months of supervised release, noting that the district court had noted, reasonably, the need to deter other police officers from filing false reports.

Edwards: Conspiracy Evidence Sufficient

In U.S. v. Edwards, No. 06-11643 (May 5, 2008), the Court affirmed fraud and money laundering convictions arising out of a Ponzi scheme involving investments in coin-operated payphones.
Edwards failed to renew his motion for judgment of acquittal at the close of all the evidence, as required by Fed. R. Crim. P. 29. Accordingly, the Court reviewed his challenge to the sufficiency of the evidence only for "a manifest miscarriage of justice." The Court held that the evidence was sufficient, noting that Edwards was aggressively courting investors with claims that his company was sound and profitable, when it was, in reality, "hemorrhaging money." Turning to the conspiracy conviction, the court noted that since conspiracies are "inevitably secret," they are "rarely established by direct evidence." The Court concluded that Edwards’ wife was not aware that what she was doing was illegal, and she therefore was not a conspirator. However, another senior manager at Edwards’ companies participated in the transfers of money, and inferences from his conduct sufficed to establish that he had conspired with Edwards to launder the fraud proceeds.
The Court rejected Edwards’ argument that victims of his fraud who were going to be called as government witnesses should have excluded from the courtroom during the trial under Fed. R. Evid. 615. The Court noted that the Crime Victims Act provides an exception to Rule 615 for victims, and the Court found no constitutional basis for invalidating this exception, and no abuse of discretion in the district court’s application of it.
The Court also found no "collusion" between the SEC and the United States Attorney’s Office in acquiring and sharing information about Edwards’ corporations. The Court further rejected an argument that the fraud jury instruction constructively amended the indictment because it expanded the mens rea for the offense.
The Court did not address Edwards’ challenges to his sentence because it vacated the sentence and remanded for resentencing: the district court failed to specify, as required, a sentence for each count of conviction.

Brown: Plea Voluntary Even If Court does not explain essential elements of the offense

In U.S. v. Brown, No. 05-16128 (April 29, 2008), the Court affirmed the conviction and 235 month sentence of a defendant convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
Reviewing the issue for plain error, the Court rejected the argument that Brown’s plea was involuntary because the district court did not explain the elements of the offense. The Court noted that the omission, while "not ideal," was not plain error, since the elements of the offense were not difficult to understand from the indictment and the factual description of his conduct. The Court recognized that a less than full explanation of the elements of the offense could impair a defendant’s understanding of possible defenses, and thereby undermine the voluntariness of his plea (an understanding of possible defenses being, the Court appeared to assume, just as essential to the nature of the offense as the elements that constitute it). However, no realistic offense could have made Brown forego a plea of guilt, given their "significant weaknesses."
The Court also rejected the argument that the plea was involuntary because Brown was not told he would eventually be sentenced as a career offender. The Court decline to reach, on direct appeal, the merits of Brown’s claim that the prosecutor misled him into believing that he would not be sentenced as a career offender.
The Court also rejected an Ex Post Facto challenge to the sentencing court’s reliance on an intervening Eleventh Circuit interpretation of "crime of violence" as a basis for making Brown’s § 2422(b) conviction qualify for punishment under the harsher career offender guidelines. The Court noted that the maximum sentence set forth in the U.S. Code provides a person with sufficient notice, for Ex Post Facto purposes, as to the possible punishment, and intervening caselaw interpreting the Guidelines is therefore "immaterial" to the analysis.
The Court further rejected the argument that the sentencing court violated his constitutional rights when it relied on Ohio docket sheets for the purpose of determining the nature of a prior conviction. The Court noted that the rule limiting the types of information a court can consider to determine the nature of prior convictions is not constitutional. Further, the docket sheets here were not unclear as to the nature of Brown’s prior convictions.
Turning the reasonableness of the sentence, the Court found that the district court’s failure to discuss mitigation evidence did not mean if failed to consider this evidence. The Court found the within-Guideline sentence "reasonable." Finally, the Court rejected the argument that "pervasive bias" infected the sentencing court’s sentencing.

Moore: Sex for Contraband Conspiracy Affirmed

In U.S. v. Moore, No. 07-10326 (April 22, 2008), the Court affirmed the convictions of two correctional officers convicted of "bribery."
The Court rejected a challenge to the sufficiency of the conspiracy evidence, noting that while the government witness gave conflicting testimony, the jury was free to credit the testimony that the correctional officers agreed to participate in a "sex for contraband conspiracy."
The Court rejected defendants’ argument that the mere acts of switching guard duty to avoid detection, allowing inmate use of the telephone, allowing inmates to leave their unit at night, were not "official acts" for purposes of the illegal gratuity statute. The Court pointed out that an "official act" need not involve a violation of a statute, but could involve the mere violation of an established practice. Under this broader definition, the defendants’ acts were "official acts."
The Court also rejected the argument that there were multiple conspiracies, not a single "sex for contraband" conspiracy. The Court found no "material variance" from the indictment, noting that the defendants acts all had a "common goal," an "underlying scheme," and "overlapping arrangements." Further, a multiple conspiracy jury instruction was not required, because the evidence showed a common scheme.
The Court rejected the argument that the Court constructively amended the indictment when it specifically instructed the jury that it is a violation of an officer’s duty to provide contraband to an inmate. The Court noted that this language was largely based on the indictment and did not expand the grounds for conviction.
The Court also found no "plain error" in the jury instruction that sex is a "thing of value."

Livesay: Inadequate Explanation for sentence variance

In U.S. v. Livesay, No. 06-11303 (April 23, 2008), the Court reversed the sentence of 60 months’ probation imposed on a former controller at HealthSouth corporation, for his role in this company’s $1.4 billion fraud. The sentence reflected a downward 5K1.1 departure, based on the defendant’s substantial assistance to authorities, from the Guideline range of 78-97 months.
The Court noted that the sentencing court relied on the fact that Livesay "repudiated the conspiracy at an early time." The Court pointed out, however, that repudiation from a conspiracy is not related to substantial assistance. Hence, the sentencing court committed procedural error.
The sentencing court also committed procedural error in failing to give any explanation of its reasons for imposing a sentence of 60 months’ probation; the sentencing court failed to give any reasoning or indication of what facts justified its significant variance from the advisory Guidelines range. It also failed to discuss how its sentence would satisfy the § 3553(a) factors. This failure precluded meaningful appellate review. The district court listed the sentences received by others in the HealthSouth fraud, but did not indicate how Livesay’s culpability compared to theirs.

Velasquez: Immigration Status Not a Proper Sentencing Factor

In U.S. v. Velasquez, No. 06-16637 (April 21, 2008), the Court vacated a nine-month sentence imposed on a defendant for violation of supervised release.
The defendant pled guilty and was sentenced to time served and two years supervised release for use of a counterfeit visa for entry into the United States, in violation of 18 U.S.C. § 1546(a). While on supervised release, the defendant was arrested for driving with a suspended licence. Though recognizing the "de minimus" nature of this supervised release violation, the district court imposed the high-end guideline range sentence of nine months, because of its concern that a person in the United States illegally should not be allowed to "roam free." The district court also questioned the wisdom of immigration authorities in letting an illegal alien out of custody, on bond, while his immigration asylum application was pending.
The Court vacated the sentence, pointing out that Congress vested authority to detain removable aliens in the United States, not in the courts. "[A] judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal view of immigration policy." http://www.ca11.uscourts.gov/opinions/ops/200616637.pdf

Harrell: Obstruction enhancement includes underlying crimes

In U.S. v. Harrell, No. 06-15410 (April 17, 2006), on a government appeal, the Court held that the sentencing court erred in declining to impose the Guidelines cross-reference enhancement for obstruction of justice, USSG § 2J1.2, with regard to obstruction that occurred "in respect to" other underlying crimes.
The defendant was convicted of obstruction of justice for attempting to convince a witness to support his version of a conversation he had with another person, which itself also involved witness tampering. At sentencing, the government claimed that the obstruction of justice sentence should be enhanced, in accord with the guideline cross-reference provision, based on the seriousness of the underlying crimes for which Harrell was being prosecuted when he obstructed justice.
The Court agreed that the Guideline enhancement should apply with respect to the underlying crimes for which the prosecution would have been obstructed had the tampering been successful, for example, if a prosecution’s witness’ credibility was successfully undermined. However, the enhancement would not apply to charges that were severed from the trial at which Harrell’s obstruction conduct was at issue. "For the obstruction of justice [enhancement] to be cross-referenced, the obstruction of justice must have had the potential to disrupt the government’s investigation or prosecution of [the] crimes."

Westry: Hearsay statement to a friend can be against penal interest

In U.S. v. Westry, No. 06-13847 (April 16, 2008), the Court affirmed convictions and vacated in part sentences for a number defendants convicted of drug trafficking morphine, methadone, oxycontin and other drugs.
The Court rejected a challenge to the sufficiency of the evidence of conspiracy. The Court rejected the claim that because the defendants were at time in competition with each other for drug suppliers or customers, they were not part of a conspiracy. The Court pointed to evidence of "interrelatedness" of the defendant’s conduct. The Court further noted that "the existence of healthy competition" did not negate supplying consumers’ demand. As to one defendant, the Court rejected a "mere presence" claim, pointing out that he accepted a cash payment from an undercover officer to pay for his drug trafficking-related travel.
The Court also rejected the claim that a hearsay statement from a cocaine addict (and eventual victim of overdose) regarding the source of his cocaine. The Court recognized that the statement was made to a friend. However, it still could be treated as a "statement against penal interest," because of the chance, "albeit slight," that the declarant’s admission that he was waiting for cocaine would subject him to severe penalties.
The Court found no error in the refusal to give jury instructions regarding the defense of withdrawal from a conspiracy. The only evidence of withdrawal was a statement that one defendant "wasn’t involved" anymore. Because withdrawal requires "affirmative action to disavow or defeat the purpose of the conspiracy," there was insufficient evidence to support a withdrawal instruction.
The Court also rejected a challenge to the Pinkerton jury instructions. The defendants had sought instructions that specified that the amount of drugs at issue, and the death of drug user, were reasonably foreseeable. The Court upheld instructions which more generally instructed the jury that a co-conspirator is responsible for others’ crimes that were "a reasonably foreseeable consequence of the conspiracy."
Turning to sentencing, the Court found no error in the application of the "death enhancement," based on the death of an addict from an overdose from an injection of methadone sold by the defendants. "Where a conspirator is involved in distributing drugs to addicts, some of which are even administered intravenously, it is a reasonably foreseeable consequence that one or more of those addicts may overdose and die."
As to one defendant, however, the Court agreed that the evidence was too "meager" to support a death enhancement, as it only showed his "presence and association" with a member of the conspiracy prior to the death of the addict. A defendant cannot be held accountable for a death that occurred prior to his entry into conspiracy.
The Court, however, affirmed the imposition of a firearm enhancement. The Court held that a firearm’s possession is a reasonably foreseeable consequence of a "long-standing operation of a drug house." In any event, any error in applying the enhancement was harmless, in light of the life sentences imposed on other bases.

Begay: DUI is not a "violent felony"

In Begay v. U.S., No. 06-11543, the Supreme Court held that a felony conviction for driving under the influence of alcohol (DUI) falls outside the scope of the "violent felony" definition, for purposes of imposing a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior "violent felony" convictions.
The Court concluded that DUI is too unlike the four examples Congress listed in the "violent felony" definition, namely "burglary, arson, or extortion, or [an offense that] involves use of explosives," to indicate that Congress intended that provision to cover DUI. "[T]he statute covers only similar crimes, rather than every crime that presents a serious potential risk of physical injury to another." (Emphasis in original).
The Court found that DUI differs from the four example crimes, in that it does not involve the violence and aggressive conduct typical of them. The Court noted that a contrary definition would take in crimes "far removed . . . from the deliberate kind of behavior associated with the violent criminal use of firearms."

Mock: Attempted Murder Enhancement Requires Findings

In U.S. v. Mock, No. 06-15861 (April 14, 2008), the Court affirmed a defendant’s arson convictions, but reversed the sentence because the district court did not make explicit findings of fact to support its attempted murder enhancement.
The Court rejected a challenge to remarks in the prosecutor’s closing argument, noting that while "colorful," they did not jeopardize the fairness of the trial. The Court also rejected a variety of challenges to the trial court’s evidentiary rulings.
Turning to the sentence, the Court noted that USSG § 2A2.1 provides for a sentence enhancement for arson offenses if the offender "attempted to cause death" by first-degree murder. The trial court imposed this enhancement, without making explicit findings. The Court noted that findings are necessary to facilitate judicial review. The Court therefore vacated the sentence and remanded for resentencing.

Ellisor: Christmas Show Fraud Punished by 87 months

In U.S. v. Ellisor, No. 05-14459 (April 7, 2008), the Court affirmed the mail fraud convictions and 87-month sentence of a defendant convicted of defrauding schools and children’s parents of money paid for tickets for a non-existent "Christmas Around the World Show."
The Court rejected Ellisor’s claim that the district court violated Fed. R. Evid. 404(b) when it admitted evidence of two prior incidents, a fraudulent "Washington D.C. on Tour" show, and his non-payment of his $ 1,657 charges at Coconut Grove’s Doubletree Hotel. The first incident showed Ellisor’s "intent to defraud by promoting an illusory show," while the evidence of the unpaid hotel bill was intertwined with the proof of the government’s fraud case, occurring as it did in the weeks leading up to the dates advertised for the show.
The Court also affirmed the exclusion of evidence of Ellisor’s prior authentic shows, noting that evidence of good conduct is not admissible to negate criminal intent.
The Court rejected a challenge to the sufficiency of the evidence, finding "ample" evidence from which the jury could have convicted. "‘Christmas From Around the World’ was billed as featuring 28 foreign ambassadors, Harry Potter characters, lavish Christmas decorations, raffle prizes, and even live reindeer. When the children showed up . . . the convention center was locked and bare."
Turning to the sentence, the Court rejected Ellisor’s argument that the loss amount was less than $30,000, that schools, not parents and children, should only be counted as victims, and that he had misrepresented that the University of Miami was a sponsor. The Court also affirmed the obstruction of justice enhancement based on Ellisor’s perjurious testimony at trial.
Finally, the Court affirmed the upward variance based on the "reprehensible" offense and prior similar misconduct.

Svete: Mail Fraud Instruction Defective

In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants’ challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits.
Citing U.S. v. Brown, 40 F.3d 1218 (11th Cir. 1994), the Court rejected challenges to the sufficiency of the evidence, pointing out that both defendants had testified in their defense, and that the jury was therefore free to believe of the opposite of their testimony.
The Court, however, agreed that the mail fraud jury instruction was defective because, though directly copied from the Pattern Jury Instruction, it failed to instruct, as the caselaw provided, that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." The inaccuracy impaired the defendants ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. The Court therefore reversed the mail fraud convictions.
The Court rejected Giglio-based challenges to the trial. A prosecution witness lied on the witness stand about not having been previously incarcerated. However, the Court found that the violation was not "material," because the defendant decided not to pursue this line of impeachment, and because other impeachment of the witness was successful, and because this witness’ testimony was otherwise corroborated by other witnesses.
Finally, the Court rejected the challenge to the determination of a loss over $80 million for sentencing purposes.