Thursday, December 24, 2009
Ninth Circuit - United States v. Berger - Court stated:
"While we decline to extend the Dura Pharmaceuticalsprinciple to criminal securities fraud, we conclude that the district court's loss calculation approach was nevertheless flawed. Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger's sentence and remand to the district court for resentencing."
(Check out this super article on this case in the Criminal Law Reporter, authored by Hugh B. Kaplan - reprinted with permission here - Download Berger). The case offers an interpretation on the applicable standard that should be used in finding sentencing facts. It also sets the stage for a jurisdiction split on Dura's applicability. (hat tip also to Evan Jenness).
Fifth Circuit - United States v. Whitfield (Minor & Teel) -
The "government claimed that by virtue of their judicial offices, Whitfield and Teel were agents of the Mississippi Administrative Office of the Courts (AOC)" and that the AOC received $10,000. in federal funds for a Section 666 prosecution. The court, however, held -
"Whitfield’s and Teel’s role as presiding judges in Marks and Peoples Bank had no "connection with any business, transaction, or series of transactions" of the AOC. See 18 U.S.C. § 666(a)(1)(B), (2). Therefore, by its own plain language, section 666 applies neither to Whitfield’s and Teel’s acceptance of bribes nor to Minor’s offering of bribes in connection with those cases. The Government has cited no authority supporting a contrary conclusion. As such, we hold that the district court committed plain error when it denied appellants’ Rule 29 motions for judgment of acquittal on the section 666 counts of the indictment."
Other convictions were upheld, but the case was remanded for resentencing.
Third Circuit - United States v. McGeehan
This blog previously noted this decision and said commentary would follow. That commentary did not follow because it seems that this case, like others will await the Supreme Court decision in the three honest services cases under review (see here). So stay tuned.
Second Circuit - United States v. John Doe (Download 08-4064-cr_so)
The Second Circuit appointed amici counsel - Lee G. Dunst (Gibson, Dunn & Crutcher LLP) - to argue the case as amici as the government joined the defense in arguing for permanent sealing of the sentencing transcript. The court affirmed the "district court's denial of the application for a total and permanent sealing of the sentencing transcript, but" the court did "remand the case to the district court to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both."