Articles Posted in Fraud

Yesterday, the Eleventh Circuit Court of Appeals issued its fourth opinion regarding the federal sentencing of Kenneth Livesay, former chief information officer for HealthSouth Corporation. The Court has insisted that Livesay must serve time in prison for his role in the accounting fraud at HealthSouth. We are disappointed in the Court’s decision, because in our view, the sentence was supported by the Supreme Court’s decision in Gall v. United States.

Prior to 1999, Livesay was an assistant controller for HealthSouth who played a direct role in the accounting fraud that came to light following Sarbanes-Oxley in 2003. In 1999, however, Livesay decided that he could no longer stomach the fraud, so he transferred to the IT department, where he became CIO. Before the fraud was discovered, he was asked repeatedly to return to the accounting department, but he refused.

In 2004, Livesay pleaded guilty to conspiracy to commit wire fraud, securities fraud, and falsifying records; falsely certifying financial information filed with the SEC; and a forfeiture court. Pursuant to his plea agreement, the government agreed to recommend a reduction in his offense level for acceptance of responsibility, a sentence at the low end of the guidelines, and a downward departure in exchange for Livesay’s cooperation with the government.

Ed. Note: This week, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. Once a week this month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

Identity Theft Amendments

Congress directed the Sentencing Commission to increase the penalties under several of the identity theft statutes in Title 18. In response to that directive, the Commission added a new enhancement and a new upward departure provision, as well as expanding the definition of “victim” and the factors to be considered in calculating the amount of loss.

Frank DiPascali, Bernie Madoff‘s top financial aide, pleaded guilty on Tuesday to ten criminal counts, including conspiracy, tax evasion, and securities fraud. He was taken into federal custody immediately after the hearing, at which he had waived indictment and admitted to helping Madoff falsify trading records for decades.

Although he faces up to 125 years in federal prison for his crimes, he may receive a lenient sentence due to his cooperation with the prosecution. Other than Madoff (who received a 150-year sentence) and DiPascali, only accountant David Friehling has been charged in connection with the massive Madoff fraud. DiPascali likely has a wealth of information on many potential targets of investigation and has been cooperating with the prosecution since January. Based upon his cooperation, the prosecution recommended a bail package pending sentencing in his case. Despite the recommendation, Judge Richard Sullivan denied bail, ordering DiPascali into custody immediately. Whether he will benefit from his cooperation at sentencing remains to be seen.

One of the prosecution’s most formidable tools in a criminal case is the bargaining power inherent in its prosecutorial discretion. The prosecution usually wields significant power at sentencing. In other accounting scandal cases, highly culpable defendants who have cooperated have received light sentences in comparison to their former co-workers. Scott Sullivan, for instance, former WorldCom CFO who testified against CEO Bernard Ebbers, has already returned to his home in Boca Raton, after serving four years of his five-year sentence. Ebbers, on the other hand, is scheduled for release in 2028. Jeffrey Skilling, former president of Enron, is also scheduled for release in 2028, whereas CFO Andy Fastow received only six years, due to his significant cooperation with the prosecution.

Last Monday, the Supreme Court granted certiorari in Weyhrauch v. United States, a federal criminal honest services fraud case. We are in Atlanta, Georgia, which is in the Eleventh Circuit. Because this case may impact Eleventh Circuit law, we will follow this case closely and provide any updates.

The question to be decided in Weyhrauch is “Whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.”

The defendant in this case is a lawyer and was a member of the Alaska House of Representatives. He is accused of honest services fraud due to conflicts of interest in conducting business with an oil field services company. The government wanted to introduce evidence of his concealment of the conflicts of interest to support the fraud charges, even though the state did not require disclosure.

In a move that is sure to keep federal criminal defense attorneys in Atlanta and other places busy, the Federal Bureau of Investigation recently announced an increase in federal criminal mortgage fraud investigations. According to recent news reports, since last October, the FBI has transferred 75 agents working on other matters to the more than 2,000 open, federal mortgage fraud cases.

In total, there are approximately 254 FBI agents working on this task force, and as expected, this has resulted in an increase in the number of open federal mortgage fraud investigations. Indeed, based on figures provided to Congress by the FBI Director, the FBI has opened about 200 mortgage fraud investigations in the past five weeks.

As our firm noted back in 2007 on this earlier Georgia Federal Criminal Lawyer Blog post, “those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon.”

Posted in:

As you may remember, we have been closely following United States v. Svete, which involves the federal criminal mail fraud statute, in the Eleventh Circuit Court of Appeals in here Atlanta, Georgia. In this post back in April 2008, Paul Kish explained the facts of the case and the original Eleventh Circuit’s decision’s potential implications for criminal defendants. In early July, Carl Lietz reported in this post that the Court had vacated its opinion in Svete and decided to re-hear the case before the entire Court. He later reported in this post that the Court had identified the issues on which it would focus. In September we again kept you updated with this post by linking to the briefs that had been submitted to the court by the defendants and the National Association of Criminal Defense Lawyers.

This Monday, the Eleventh Circuit Court of Appeals finally filed their en banc opinion in this case. Unfortunately for criminal defendants, the Court overruled its very sensible opinion in United States v. Brown and broadened its definition of mail fraud, and by extension, probably the other types of federal fraud, as well. We hope that this is not the final installment in this case, as we believe that the Court violated the contemporary understanding doctrine in this case.

Elementary social studies classes teach about one of the most important aspects of our government: the separation of powers between the three branches of government. This separation of powers provides checks and balances so no single branch becomes too powerful. This system, established by the framers of the Constitution, is the basic foundation of our democracy.

Most of us that practice criminal law in federal court have become familiar with the federal identity fraud statute. In essence, this statute requires a federal judge to impose a two year mandatory minimum sentence on an individual who, in the context of committing a certain enumerated federal felony offense, “knowingly transfers, possesses, or uses . . . a means of identification of another person . . . .” Significantly, this two year sentence must be imposed to run consecutively to any other sentence that the court imposes.

Currently, a split in the circuits exists on the manner in which the term “knowingly” has been interpreted. In some circuits, the Government is required to prove that the defendant is aware that the “means of identification” at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing. This showing can be significant because in some cases, particularly those involving undocumented aliens, the Government is unable to prove that the defendant knew that the means of identification actually belonged to someone else.

Earlier this year, in two separate cases, lawyers representing criminal defendants in federal court asked the Supreme Court to resolve the circuit conflict on this important issue. Although these requests were not unusual, the Government’s response to these petitions seems to ensure that the Supreme Court will in fact take up this issue in the upcoming term. As reported over at the Scotusblog, in its brief in response to one of the cert petitions, the government conceded that a “clear and entrenched” conflict existed over the proper interpretation of the law. And based on this conflict, the Justice Department recommended that the Court grant cert to resolve the conflict. The Government’s response brief can be found here, and additional background on the issue can be found here.

Posted in:

Recently, the Eleventh Circuit (which is headquartered here in Atlanta, Georgia) identified the issues that it will address in a federal criminal appeal involving the federal mail fraud statute. As both Paul Kish and I have discussed here and here, one of the main issues in the case is whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

In Paul’s previous post, he noted that, initially, the court of appeals concluded that the pattern jury instruction is deficient in that it failed to require the government to prove that the defendant participated in a scheme that was “reasonably calculated to deceive persons of ordinary prudence and comprehension.” Therefore, since the pattern instruction failed to include this important language, the Eleventh Circuit reversed the fraud convictions in the Svete case.

Svete’s victory, however, was short lived. As I previously discussed, not long after this ruling, the Eleventh Circuit vacated its opinion and ordered that the case be heard by the entire court, rather than just the three judges that sat on the panel. I also noted that although the opinion vacating the initial ruling did not identify the issues that the Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue would in fact be the focus.

In a case that is being closely watched by federal criminal defense attorneys, the Eleventh Circuit vacated its prior opinion in a federal fraud case. In the initial opinion, the Court concluded that the pattern jury instruction for federal mail fraud cases is deficient in that it fails to require the Government to prove that the defendant intended to create a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. According to the Court, this burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud. For this reason, the Court vacated the defendants’ convictions on the mail fraud charges.

Earlier today, however, the Court entered an Order vacating its prior opinion and directing that the case be reheard by the entire Court. Although today’s Order did not identify the issues that Court will focus on in the en banc sitting, it is safe to assume that the jury instruction issue will in fact be the focus.

Our firm has been following this case very closely. In fact, shortly after the initial decision was handed down, my law partner Paul Kish outlined the significance of the decision in a previous post. As he pointed out, the decision had the potential to impact a whole host of other cases, including those that involved other varieties of alleged fraud. We will certainly continue to follow the case, as it develops.

Posted in:

In a federal mortgage fraud case origninating out of Atlanta, Georgia, the Eleventh Circuit affirmed a 360 month sentence against a real estate closing attorney. The appeal arose after a two week federal trial that occurred in the United States District Court for the Northern District of Georgia.

On appeal, the closing attorney made a number of arguments, including the argument that the 360 month sentence was “unreasonable.” With respect to that argument, as well as all the others raised on the attorney’s behalf, the Eleventh Circuit disagreed. According to the Court of Appeals, “the sentence imposed [was] both procedurally and substantively reasonable.”

After the attorney’s sentencing, the U.S. Attorney’s Office reported that the case involved one of the largest cases of mortgage fraud in this district. In recent years, those of us that handle federal criminal cases have seen a surge in federal mortgage fraud prosecutions. And from what we have seen, we do not expect this surge to slow down anytime soon. Indeed, as an excelent article from a fellow member of the National Association of Criminal Defense Lawyers points out, “the tumultuous state of the mortgage industry, combined with increasing reports of millions of dollars of loss from mortgage fraud schemes, has created the perfect storm for law enforcement initiativies.”

Posted in:
Contact Information