In the Courts

Co-conspirator Can Be Considered a Victim for Sentence Enhancement Purposes

In United States v. Geeslin, No. 05-10535 (5th Cir. Apr. 20, 2006), the Fifth Circuit held that in some circumstances a participant in a crime can also be considered a victim for the purpose of calculating the offense level under the Sentencing Guidelines, particularly where the co-conspirator's actions may not have been wholly voluntary.

The defendant was the Chief of Police of a town in Texas. As part of his duties, he instituted a program wherein police officers could supplement their incomes by serving warrants in exchange for a warrant fee. He then induced one of the officers participating in the program to file fraudulent reports indicating that the defendant had assisted him in serving warrants so that defendant could share in the warrant fees. Despite the fact that the other officer was a co-conspirator and a participant in the scheme, upon sentencing, the district court counted him as a victim and used the fees he forfeited to the Chief in calculating the total amount of loss caused by the scheme. On appeal, the Fifth Circuit affirmed. The court noted that the officer had real losses and that, despite his own conviction in state court for his part in the fraud, there was evidence presented that his participation in the scheme may have been coerced by the defendant.

Government's View That Defendant Had Not Accepted Responsibility Is Not Sufficient Basis to Withhold Sentence Reduction

In United States v. Richin, ___ F.Supp ___, 2006 WL 1171891 (D. Utah May 3, 2006), the court held that the government's view that the defendant had not actually accepted responsibility for her crime was not a valid basis to withhold its motion for a third-level sentence reduction.

Pursuant to a plea agreement, the defendant pled guilty to a single count of bank fraud stemming from her scheme to submit fraudulent payroll time cards to an employer for payment. The pre-sentence report, to which the prosecutor did not object, indicated that the defendant had accepted full responsibility for her actions. At the sentencing hearing the government indicated that, after further discussion with defendant's employer, it had reason to believe that the defendant had not admitted her guilt to her employer. The government indicated that, in its view, this meant that she had not properly accepted responsibility. The government argued that the fact that it alone believed that the defendant had not accepted responsibility was sufficient reason to deny her the third-level reduction she would have otherwise received. The government then declined to file the third-level motion, effectively denying the sentence reduction. The court disagreed, holding that the government could withhold the motion only if its refusal was 'rationally related to any legitimate government end.' The court pointed out that the determination of whether a defendant has accepted responsibility is one for the court; the prosecutor's role is merely to certify that the plea was timely enough to avoid the expense of preparing for trial. Thus, the prosecutor's opinion of the validity of the defendant's acceptance of responsibility is not determinative and the refusal to file the motion was without rational basis. The court directed the government to further explain its rational for declining to file the motion.

Statements in Response to Ambiguous Government Forms Cannot Be the Basis for Perjury Conviction

In United States v. Naegele, No. 05-0151 (D.D.C. May 2, 2006), the district court held that statements made in a Chapter 7 bankruptcy filing could not, as a matter of law, constitute perjury because the form defendant was responding to is 'fundamentally ambiguous' and that responses to such ambiguous questions cannot support a perjury conviction.

Defendant, an attorney practicing as a sole practitioner, was indicted and charged for alleged false statements he made by providing his net income from his law practice on his Statement of Financial Affairs when the document called for his gross income. Defendant argued that he had a good faith belief that the form, which called for 'gross income received' was referring to money he actually received, ie, net income. The court agreed that the instructions were ambiguous, and held that because perjury requires a knowing falsehood, replies to ambiguous questions cannot support a conviction for perjury.

Eighth Circuit en Banc Abandons the 'Slight Evidence' Rule in Conspiracy Cases

In United States v. Lopez , 443 F.3d 1026 (8th Cir. 2006), the Eighth Circuit clarified the proper standard of review for challenges to the sufficiency of the evidence in conspiracy cases, rejecting the 'slight evidence' rule and holding that the government must offer enough evidence to prove beyond a reasonable doubt the defendant's connection to the conspiracy.

The defendant was convicted of conspiracy to commit various drug-related offenses. An Eighth Circuit panel affirmed his conviction noting that, although the evidence connecting him to the conspiracy was 'razor-thin,' once the existence of a conspiracy is established only 'slight evidence' of the connection between a particular defendant and the established conspiracy is required to support conviction. United States v. Lopez , 414 F.3d 954, 959 (8th Cir. 2005). Upon en banc review, the Eighth Circuit vacated that portion of the panel's decision. The Court noted that the 'slight evidence rule,' in force in the Eighth Circuit for 70 years, had been frequently criticized and at times misinterpreted. While emphasizing that the slight-evidence rule was never intended to relieve the government of its burden of proving all elements of the crime beyond a reasonable doubt, the court acknowledged that the language of the rule could suggest otherwise and therefore rejected its future use.

Co-conspirator Can Be Considered a Victim for Sentence Enhancement Purposes

In United States v. Geeslin, No. 05-10535 (5th Cir. Apr. 20, 2006), the Fifth Circuit held that in some circumstances a participant in a crime can also be considered a victim for the purpose of calculating the offense level under the Sentencing Guidelines, particularly where the co-conspirator's actions may not have been wholly voluntary.

The defendant was the Chief of Police of a town in Texas. As part of his duties, he instituted a program wherein police officers could supplement their incomes by serving warrants in exchange for a warrant fee. He then induced one of the officers participating in the program to file fraudulent reports indicating that the defendant had assisted him in serving warrants so that defendant could share in the warrant fees. Despite the fact that the other officer was a co-conspirator and a participant in the scheme, upon sentencing, the district court counted him as a victim and used the fees he forfeited to the Chief in calculating the total amount of loss caused by the scheme. On appeal, the Fifth Circuit affirmed. The court noted that the officer had real losses and that, despite his own conviction in state court for his part in the fraud, there was evidence presented that his participation in the scheme may have been coerced by the defendant.

Government's View That Defendant Had Not Accepted Responsibility Is Not Sufficient Basis to Withhold Sentence Reduction

In United States v. Richin , ___ F.Supp ___, 2006 WL 1171891 (D. Utah May 3, 2006), the court held that the government's view that the defendant had not actually accepted responsibility for her crime was not a valid basis to withhold its motion for a third-level sentence reduction.

Pursuant to a plea agreement, the defendant pled guilty to a single count of bank fraud stemming from her scheme to submit fraudulent payroll time cards to an employer for payment. The pre-sentence report, to which the prosecutor did not object, indicated that the defendant had accepted full responsibility for her actions. At the sentencing hearing the government indicated that, after further discussion with defendant's employer, it had reason to believe that the defendant had not admitted her guilt to her employer. The government indicated that, in its view, this meant that she had not properly accepted responsibility. The government argued that the fact that it alone believed that the defendant had not accepted responsibility was sufficient reason to deny her the third-level reduction she would have otherwise received. The government then declined to file the third-level motion, effectively denying the sentence reduction. The court disagreed, holding that the government could withhold the motion only if its refusal was 'rationally related to any legitimate government end.' The court pointed out that the determination of whether a defendant has accepted responsibility is one for the court; the prosecutor's role is merely to certify that the plea was timely enough to avoid the expense of preparing for trial. Thus, the prosecutor's opinion of the validity of the defendant's acceptance of responsibility is not determinative and the refusal to file the motion was without rational basis. The court directed the government to further explain its rational for declining to file the motion.

Statements in Response to Ambiguous Government Forms Cannot Be the Basis for Perjury Conviction

In United States v. Naegele, No. 05-0151 (D.D.C. May 2, 2006), the district court held that statements made in a Chapter 7 bankruptcy filing could not, as a matter of law, constitute perjury because the form defendant was responding to is 'fundamentally ambiguous' and that responses to such ambiguous questions cannot support a perjury conviction.

Defendant, an attorney practicing as a sole practitioner, was indicted and charged for alleged false statements he made by providing his net income from his law practice on his Statement of Financial Affairs when the document called for his gross income. Defendant argued that he had a good faith belief that the form, which called for 'gross income received' was referring to money he actually received, ie, net income. The court agreed that the instructions were ambiguous, and held that because perjury requires a knowing falsehood, replies to ambiguous questions cannot support a conviction for perjury.