United States v. Stargell, No. 11-50392 (9th Cir. 2013)
Annotate this CaseDefendant was convicted of twelve felonies stemming from her work as a tax preparer for various clients. The court concluded that the district court did not err in denying defendant's motion for judgment of acquittal as to Counts 1, 2, 4, and 5 of the superseding indictment where there was sufficient evidence for a rational jury to conclude that defendant's fraud scheme affected the banks within the meaning of 18 U.S.C. 1343, regardless of whether the banks ultimately suffered any actual loss; the predicate offenses for Counts 16 and 17 happened after 18 U.S.C. 1028A was enacted and, therefore, the jury was not wrong in convicting defendant of aggravated identity theft while relying on the predicate wire fraud offenses; the district court did not err in allowing defendant's former attorney to testify at the sentencing hearing where no attorney-client privilege was implicated; and the district court did not clearly err in calculating the loss and restitution amounts. Accordingly, the court affirmed the judgment.
Court Description: Criminal Law. The panel affirmed a defendant’s convictions and sentence for fraud by wire affecting a financial institution, aiding and assisting in the preparation of a false return, fraud by wire, and aggravated identity theft, arising out of the defendant’s work as a tax preparer. The panel held that new or increased risk of loss is sufficient to establish that wire fraud “affects” a financial institution within the meaning of 18 U.S.C. § 1343, and that there was sufficient evidence for a rational jury to conclude that the defendant’s fraudulent returns exposed the banks to an increased risk of loss. Because the wire fraud that was the predicate to the aggravated identity theft did not occur until after 18 U.S.C. § 1028A’s enactment date, the panel rejected the defendant’s contention that the jury may have convicted the defendant based solely on pre-enactment conduct. The panel rejected the defendant’s contention that government and the district court infringed on the core of her defense counsel’s role, in violation of the defendant’s Sixth Amendment rights, by allowing the defendant’s former attorney to testify at sentencing regarding the loss and restitution calculations, where the former attorney was called by the defendant’s new attorney. Because the former attorney’s testimony did not contain privileged communications, the panel rejected the defendant’s contention that admission of the testimony violated the attorney-client privilege. The panel held that the district court did not clearly err in calculating the loss and restitution amounts.
The court issued a subsequent related opinion or order on October 17, 2013.
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