August 31, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the District of Columbia

A quarterly case summary digest of recent federal circuit court opinions

by Andrew J. Figliuzzi

United States v. Ransom, (D.C. Cir. Jul. 1, 2014) 756 F.3d 770

Defendants pled guilty to fraud charges stemming from their criminal activity as owners and operators of a property management company. The charges were based in part on embezzling money from various clients. At sentencing, the district court applied an upward variance to Defendants’ sentences. In response, Defendants appealed, arguing that the upward variance constituted procedural and substantive error.

Held: The first Defendant’s sentence was justified, including the upward variance, because of his high ranking within the company, his fraudulent actions against people who trusted him, and his apparent lack of acceptance of responsibility—based on his failure to file a financial disclosure report, as required by his plea deal. The second Defendant’s sentence was not unreasonable, including the upward variance, because he committed the crimes while on pretrial release, and his new crimes were the same as his old crimes.

United States v. Garcia, (D.C. Cir. Jul. 11, 2014) 757 F.3d 315

Defendant, a leader in the Fuerzas Armadas Revolucionarias de Colombia (FARC) guerilla group, was charged with conspiring to smuggle five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. § 960(a). At trial, the government presented many witnesses that testified that Defendant was actively involved in the drug trade and had sold many kilograms of cocaine regularly. Ultimately, Defendant was convicted and sentenced to 294 months’ imprisonment. Defendant appealed arguing that he was only involved in his group’s political activities; that the chain of custody of much evidence was either inadequate or tainted; and, that the government failed to make disclosures mandated by Brady.

Held: First, the evidence against Defendant at trial was overwhelming and conclusive. Second, Defendant’s allegations of a Brady violation are unsubstantiated because the government disclosed all necessary evidence to the defense as soon as they received it. Third, Defendant’s chain of custody argument fails because the standard of proof only requires that the trier of fact reasonably believe that an item is still what the proponent claims it to be.

United States v. Henry, (D.C. Cir. Jul. 22, 2014) 758 F.3d 427

Defendant was arrested and charged with one count of persuading or coercing an individual to travel to engage in sexual activity for which a person can be charged with a criminal offense, and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2422(a) and 2252A(a)(5)(B). After Defendant was charged, he agreed to a plea deal in which he would provide information to the government that would assist in the prosecution of other child pornography offenders. As part of the deal, the government agreed to inform the Departure Guideline Committee of the United States Attorney’s Office about Defendant’s cooperation and would subsequently file a departure motion at sentencing, if permitted by the committee. Although Defendant provided key information which led to the arrest and prosecution of others, the committee declined to approve a departure motion and Defendant was sentenced accordingly. Defendant appealed his sentence, arguing that the government breached the plea agreement.

Held: The government did not breach the plea agreement with Defendant. The government gave the Departure Guideline Committee all necessary information to make a determination about filing a departure motion, including that Defendant had communicated online with other suspects as part of a sting operation. The plea agreement did not guarantee that a motion would be filed with the court.

United States v. Baxter, (D.C. Cir. Aug. 8, 2014) 761 F.3d 17

Defendant, along with another, was convicted of various charges, including wire fraud, mail fraud, making false statements, embezzlement from a labor union, and money laundering, after Defendant stole millions of dollars from the Washington Teachers Union. At trial, Defendant’s co-conspirator testified against him. Following sentencing, Defendant found out that the co-conspirator had bi-polar disorder. In response, Defendant appealed, arguing that the government failed to disclose the co-conspirator’s bipolar disorder prior to trial, and that the failure violated Brady. Second, Defendant argued that his conviction for conspiracy to commit mail fraud must be vacated because it was based on an honest-services fraud theory that was invalidated under Skilling. Third, Defendant argued that his conviction for money laundering was invalid under the court’s decision in Adefehinti.

Held: First, the government did not violate Brady by failing to disclose that the co-conspirator had bi-polar disorder. There is not a reasonable probability that, had the evidence of the disorder been disclosed, the result of Defendant’s trial would have been different. The information was, therefore, immaterial. Second, although Defendant did not conspire to commit honest-services fraud because the scheme did not involve bribery or kickbacks, he never raised the issue at trial. Moreover,  Defendant was not actually innocent of conspiracy to commit monetary fraud. Therefore, his Skilling claim must fail. Third, Defendant’s conviction for money laundering was not invalid under Adefehinti because a reasonable juror could find an intent to conceal money based on transactions that took place after proceeds existed, including Defendant’s signing of checks that initially went to a front company, and which proceeds were deposited into Defendant’s account.

United States v. Verrusio, (D.C. Cir. Aug. 12, 2014) 2014 WL 3906296

Defendant, the former policy director of the House Transportation Committee, was convicted of receiving illegal gratuities in violation of 18 U.S.C. § 201(c), and conspiring to receive illegal gratuities in violation of 18 U.S.C. § 371, after Defendant received World Series tickets, liquor, jerseys, lap dances, and hotel accommodations from a lobbyist in exchange for allegedly assisting the passage of a favorable bill for the lobbyist’s group. In response, Defendant appealed his conviction, arguing that the gratuities received were not related to an official act.

Held: Sufficient evidence existed to prove that Defendant received the gratuities in exchange for his official action relating to the bill because a reasonable juror could have concluded that the World Series trip was given and received for influencing the language of a federal highway bill. Such evidence included testimony and records showing that Defendant received an email from the same lobbyists after the trip that listed a series of legislative items that the lobbying group was pushing.

Andrew J. Figliuzzi is a second-year student at Baylor University School of Law. His criminal law experience includes internship stints at FBI headquarters, FBI Austin, the U.S. Attorney’s Office for the Western District of Texas, and the Harris County District Attorney’s Office. In his free time, Andrew enjoys volunteering as a Guardian Ad Litem for abused and neglected children.


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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

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