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Short Wins – Fraud and Child Pornography Continue to Dominate the Federal Appellate Defense Victories

As in past weeks, it’s an exciting week of mainly fraud and child pornography in the federal circuits, with a heavy helping of restitution issues.

1155650_berlin_siegessule.jpgIf this week generalizes (and it doesn’t) the rule is clear: if you want to increase your chances to win a federal criminal appeal, try to represent someone accused of fraud or a child pornography charge.

And be very lucky.

As a guy who recently lost a case in the D.C. Circuit, I’d like to this explains the result. My client was only accused of bank robbery — perhaps if it had been bank fraud things would have gone better.

In any event — some highlights from this week before you dive in – the Fifth Circuit waded into the fight over when restitution is appropriate for those depicted in child pornography. The Eighth Circuit reversed a restitution award in a fraud case. And the First Circuit held that no rational jury could determine that the Farm Service Agency is a financial institution.

Keep those 28(j) letters rolling – and look for longer case updates about these victories in the week to come.

And, of course, next Monday, we’ll have a fresh round of defense victories for your reading pleasure.

1. United States v. Chaika, Eighth Circuit: In wire and mail fraud case, the district court erred in entering a final order of restitution in four respects: (1) the order was entered without affording appellant an opportunity to object to the restitution claims; (2) the amount of restitution requested by the government did not provide a sufficient basis to establish the actual loss suffered by the fraud victims; (3) regarding eight of the victims, there was no basis to award restitution because of insufficient record evidence and because appellant was not given notice or a reasonable opportunity to object to the award; and (4) some of the claims granted by the district court were submitted by buyers appellant recruited for the fraudulent loan transactions. For these reasons, the judgment was reversed only with respect to the restitution order, and the case remanded for further restitution proceedings.

2. Consolidated Fifth Circuit Cases: In re Amy Unknown; United States v. Paroline; United States v. Wright: In three consolidated child pornography restitution cases, the Fifth Circuit considered the Government’s burden in requesting restitution for victims of sexual abuse under 18 U.S.C. § 2259. The court held that because a “proximate result requirement” is only imposed in subsection (b)(3)(F) of the statute, the Government is not required to show proximate cause to trigger a defendant’s restitution obligations for the losses identified in subsections (b)(3)(A)-(E). Instead, the district court must award restitution for the full amount of the losses. For these reasons, the court vacated the district courts’ judgments and remanded for proceedings.

3. United States v. Colon-Rodriguez, First Circuit: In case arising out of appellant’s submission of Farm Service Agency loan applications, the district court erred in denying appellant’s motion for judgment of acquittal on the charge of defrauding a financial institution because no rational jury could have concluded that the Government proved the second element of the offense–that the Farm Service Agency qualified as a “financial institution.” Appellant’s conviction on this count was reversed and his sentence vacated.

4. United States v. Jackson, Eighth Circuit: Appellant, a Native American, was charged with assault in a town within the original boundaries of an Indian Reservation. The district court erred in denying appellant’s motion to dismiss the indictment on the grounds that the alleged assault occurred within the boundaries of the reservation and, therefore, in “Indian country,” because the ruling was based on an inadequate record. The case was remanded with directions to permit appellant to withdraw his conditional guilty plea to assault with a dangerous weapon and discharging a firearm during a violent crime.

5. United States v. Jones, Ninth Circuit: Appellant pled guilty to possessing counterfeit obligations with intent to defraud and was sentenced to a term of imprisonment followed by supervised release. The district court revoked appellant’s supervised release. Because the court erred in including a written special condition of supervised release that was not included in its oral pronouncement of sentence, the judgment was vacated and the case remanded for the court to strike the special condition from the written judgment to make it consistent with the oral pronouncement.

6. United States v. Budziak, Ninth Circuit: In distribution and possession of child pornography case, the district court abused its discretion when it denied appellant’s request for discovery on software that the FBI used in its investigation into appellant’s online file-sharing activities. Because the discovery material appellant requested was not part of the appellate record, it was impossible to determine whether the result of the trial would have been different had the material been disclosed. Consequently, the case was remanded to the district court to determine whether the discovery materials contained or would have led to information that might have altered the verdict and, if so, to order a new trial.

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