In United States v. Miller, --- F.3d ---, 17-50388 (9th Cir. 2020), the Court affirmed a conviction for wire fraud and filing false tax returns in a case in which a jury found that the defendant embezzled over $300,000 from the company for which he served as manager.
What makes the case interesting is that the company at issue was owned by the father of an AUSA in the CD Ca. When the AUSA son (who also had a stake in the company) learned that the manager was embezzling funds, he personally contacted the FBI. And even after the CD USAO recused itself, the AUSA continued to inquire about the case.
The Ninth Circuit was not pleased:
AUSA Greg Lesser’s role in the Miller prosecution, however limited, was a clear violation of his ethical and professional duties. Nothing, of course, prevented his father from reporting the embezzlement to the FBI, as through a public tip line or the like. But it was totally inappropriate for AUSA Lesser to, at a minimum, create the appearance of having used his personal contacts in the Bureau as a means to pull strings in favor of an investigation. And his errors compounded: after helping to initiate the Miller investigation, Lesser faced an obvious duty to report his conflict of interest (and presumptive recusal) to his supervisor as soon as possible. Instead, inexplicably, he waited three weeks to disclose his conflict, even while his father was, at the behest of the FBI, secretly recording a conversation with Miller.
Just as concerning are AUSA Lesser’s apparent continued attempts to involve himself in the Miller case even after the Central District’s recusal. For example, in January 2013, AUSA Lesser called Special Agent Swanson to inquire, “in his capacity as part-owner (or part-shareholder) of MWRC,” about the status of the case. At some point after that, Greg Lesser solicited his colleagues’ help through his work e-mail to track down information on Mr. Miller’s employment history. These attempts represented a continuing violation of Greg Lesser’s ethical obligations as an Assistant United States Attorney.
Nevertheless, the Court held "the prosecutorial improprieties had no material effect on the case."
As to the jury instruction issue, the question was whether, to be guilty of wire fraud, a defendant must have acted with the intent to “deceive or cheat,” as the current model instruction provides (8.124), or whether, the requisite intent is “deceive and cheat.”
The Court held it must be the latter: "the wire fraud statute, in plain and simple language, criminalizes the use of interstate wires to further, not mere deception, but a scheme or artifice to defraud or obtain money or property, i.e., in every day parlance, to cheat someone out of something valuable. It follows that to be guilty of wire fraud, a defendant must act with the intent not only to make false statements or utilize other forms of deception, but also to deprive a victim of money or property by means of those deceptions. In other words, a defendant must intend to deceive and cheat."
But the Court found the instructional error harmless.
In United States v. Walker, --- F.3d ---, No. 18-10211 (9th Cir. 2020), the defendant challenged the application of a fifteen-year-minimum sentencing enhancement under the Armed Career Criminal Act (ACCA) to his sentence for being a felon in possession of a firearm.
He raised two issues. First, he claimed that his three prior convictions under California Penal Code § 273.5 do not qualify as a “violent felony” under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Second, he argued that it was error under Apprendi for the district court to have determined that his prior convictions were separate incidents -- i.e., three separate convictions -- and that such determination had to be made by a jury.
The Ninth Circuit affirmed, holding both issues were foreclosed by existing Circuit precedent.
