Today, the Ninth Circuit published two decisions from the same case (not to mention an unpublished mem as well).
First, in United States v. Lonich, --- F.4th ---, No. 18-10298 (9th Cir. 2022), the Court affirmed the defendants convictions, but vacated their sentences and remanded for resentencing, in a case arising from fraudulent schemes concerning bank loans and real estate.
The opinion is over 70 pages and covers four general issues.
Initially, the Court rejected the defendants' claim that a superseding indictment violated their rights under the Sixth Amendment’s Speedy Trial Clause. In very, very short, the Court held that there was no Speedy Trial violation because the multi-year delay caused no relevant prejudice to the defendants.
The Court next addressed a challenge to the jury instructions on money laundering (18 U.S.C. § 1957) and misapplication of bank funds (18 U.S.C. § 656) counts. The Court concluded that the district court’s general “knowingly” instruction was permissible and that the defendants in any event did not show prejudice from the instruction.
The Court then rejected sufficiency challenges to convictions for bribery by a bank employee (18 U.S.C. § 215(a)(2)) and obstruction of justice (18 U.S.C. § 1512(c)(2)).
Finally, the Court vacated the sentences. It held that a clear and convincing evidence standard applied to the factual underpinnings for certain loss enhancements, and the government did not meet its burden. The discussion on this issue is extensive and worth a read, especially as to the proper application of the Valensia factors (which determine whether a clear and convincing showing is required).
Second, in a related forfeiture appeal, United States v. Houseco., --- F.4th ---, No. 18-10305 (9th Cir. 2022), the Court affirmed the district court’s dismissal of Intervener 101 Houseco, LLC’s ancillary petitions challenging the district court’s forfeiture order, asserting that the criminal defendants lacked a forfeitable interest in the property.
The intervener company argued that the defendants in the case above did not have a forfeitable interest in the subject property. The Court held that a third party in a criminal forfeiture proceeding may not relitigate the antecedent forfeitability question, but is instead restricted to the two avenues for relief that § 853(n)(6) confers. That is, the third party can challenge the criminal forfeiture order only by demonstrating that it has a superior interest in the property or was a bona fide purchaser for value.
