Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant made a false statement on an immigration form, he could not be convicted under 18 USC 1546(a), which criminalizes making a false statement on such forms “under oath,” because the statement wasn’t under oath, and his conduct wasn’t prohibited under the “knowingly presents” clause of the statute either because that, too, requires the statement be under oath.
U.S. v. Simmons, 94 Crim. L. Rep. 363 (4^th Cir. 12/11/13):

Holding: The former federal money laundering statute as interpreted in U.S. v. Santos, 553 U.S. 507 (2008), does not allow Ponzi scheme operators to be convicted separately of money laundering on the basis of their payments to some of the investors victimized by the scheme.


U.S. v. Cone, 93 Crim. L. Rep. 95 (4^th Cir. 4/15/13):

Holding: (1) Contents of emails are not necessarily admissible under “business records” exception to hearsay without further analysis since email is a more casual form of communication than other records usually kept in the course of business such that email may not be assumed to have the same degree of accuracy and reliability; and (2) Materially altering a good that bears a genuine trademark and passing it off as a more expensive product is not prohibited by the criminal trademark counterfeiting statute, 18 USC 2320.
MacDonald v. Moose, 92 Crim. L. Rep. 749 (4^th Cir. 3/12/13):

Holding: Virginia state court unreasonably applied federal law when it upheld conviction for adult who had oral sex with a minor under state statute that criminalizes oral sex since this violates Lawrence v. Texas, 539 U.S. 558 (2003), which struck down an anti-sodomy law between consenting adults under due process clause; 4^th Circuit holds that although State can proscribe oral sex between adults and minors, it cannot convict petitioner/Defendant under a general, anti-oral sex law (not a “child sex” law), which it did here.
U.S. v. Hilton, 92 Crim. L. Rep. 327, 2012 WL 6200742 (4^th Cir. 12/13/12):

Holding: 18 USC 1028(a)(7) on identify theft is ambiguous whether it includes a corporation; thus, it cannot be used to prosecute Defendants who opened bank accounts and cashed checks in a corporation’s name.
U.S. v. Cloud, 2012 WL 1949367 (4^th Cir. 2012):

Holding: Defendant’s convictions for money laundering and mortgage fraud presented “merger problems,” requiring Gov’t to establish that the proceeds in the counts were actually profits.
U.S. v. Simmons, 2011 WL 2631404 (4^th Cir. 2011):

Holding: Evidence insufficient to convict of resisting arrest with deadly weapon where Defendant discarded a gun while being pursued by police.
U.S. v. Davis, 93 Crim. L. Rep. 693 (5^th Cir. 8/19/13):

Holding: When proving bank fraud arising out of credit card scam, the Gov’t must prove that the credit card company victimized by the scam was also a depository institution that controlled an FDIC-insured bank.
U.S. v Demmitt, 92 Crim. L. Rep. 547 (5^th Cir. 2/1/13):
Holding: Even though Defendant deposited a fraudulently obtained check into her account and then wired $3,000 to her son, this did not support conviction for concealment money laundering because there was nothing to rebut the son’s testimony that the purpose of the wire transfer was to provide money to his own business and there was no evidence that Defendant used “classic” money laundering techniques like using cash or making transfers below $10,000 to avoid reporting requirements.

U.S. v. McRae, 2012 WL 6554691 (5^th Cir. 2012):

Holding: (1) Even though police officer-Defendant burned a car with dead victim’s body inside, the evidence was insufficient to convict of denying victim’s relatives access to the courts to seek legal redress, since there was no evidence that the relatives were denied access to sue; and (2) Defendant’s trial should have been severed from other codefendants where gruesome evidence was admissible solely against the other codefendants and it would have been impossible for jurors to compartmentalize that.
U.S. v. Harris, 2012 WL 10882 (5^th Cir. 2012):

Holding: Payments for drugs did not constitute money laundering, where there was no showing that the money was the proceeds of unlawful activity.
U.S. v. Fontenot, 2011 WL 6413621 (5^th Cir. 2011):

Holding: Because a “loan” agreement was an absolute nullity under Louisiana law, it did not create a “debt”; therefore a state senator did not make a false statement in not identifying the “loan” on a later loan application.
U.S. v. Moreland, 2011 WL 6187430 (5^th Cir. 2011):

Holding: Evidence was not sufficient to support finding that defendant constructively possessed digital images found in two computers, where defendant shared the computers with two others and there was nothing to establish that defendant knew of or had access to the images, which were accessible only to a knowledgeable person using special software.
U.S. v. Miller, 94 Crim. L. Rep. 169, 2013 WL 5812046 (6^th Cir. 10/30/13):

Holding: Even though Defendant falsely represented to bank that other members of his investment partnership authorized him to obtain a loan, this did not show that Defendant “used” the other people’s names in violation of the aggravated identity theft statute, 18 USC 1028A; “lying about whether [the other people] gave him authority to act on behalf of the company is conceptually distinct from [Defendant] acting on their behalf.”
U.S. v. Zabawa, 2013 WL 2372281 (6^th Cir. 2013):

Holding: Even though police officer butted heads with Defendant and cut his head in doing so, Defendant did not “inflict” this injury on officer; “inflict” refers to physical, not proximate, causation, and the direct cause of the injury was the officer’s action in head butting.
U.S. v. Kurlemann, 92 Crim. L. Rep., 566 (6^th Cir. 2/13/13):

Holding: 18 USC 1014 which prohibits a borrower from making any false statement for the purpose of influencing a lender does not criminalize fraudulent omissions.
U.S. v. Zaleski, 2012 WL 2866301 (6^th Cir. 2012):

Holding: Even though Defendant (who previously had been convicted of a felony and could not possess firearms) arranged to have firearms transferred to a dealer and received money from the sale, this did not constitute “constructive possession” to support a conviction for felon in possession of firearms.
U.S. v. Parkes, 2012 WL 310817 (6^th Cir. 2012):

Holding: The evidence of a copy of an e-mail that a defendant had sent to the company’s attorney reflecting that the defendant and another corporate officer had generated 10 new company names was insufficient to prove bank fraud beyond a reasonable doubt.
U.S. v. Dudeck, 2011 WL 3179902 (6^th Cir. 2011):

Holding: Where record was unclear whether Defendant’s convictions for possession of child pornography and receipt of child pornography were based on same conduct, case was remanded to determine if the possession offense is a lesser included offense of the receipt offense or based on different conduct.
U.S. v. Daniels, 2011 WL 2637274 (6^th Cir. 2011):

Holding: A child exploitation enterprise (CEE) requires “three or more other persons” act in concert to participate; gov’t failed to establish a CEE where it showed that two of Defendant’s adult prostitutes participated in offenses underlying the CEE charge, but did not show that a third person acted in concert with Defendant.
U.S. v. Spears, 93 Crim. L. Rep. 748, 2013 WL 4774514 (7^th Cir. 9/6/13):
Holding: Even though Defendant sold a woman a false handgun permit bearing the woman’s own name, this did not constitute aggravated identify theft, 18 USC 1028A, because no one’s identity had been stolen or misappropriated.
U.S. v. Phillips, 93 Crim. L. Rep. 717 (7^th Cir. 9/4/13):

Holding: Defendants charged with committing mortgage fraud by lying about their income on a loan application should have been allowed to present evidence that their broker had assured them that their falsehoods would not affect the bank’s decision about the loan; this is because such assurances would negate Defendant’s intent to “knowingly” make a false statement “for the purpose of influencing” the bank, as required by 18 USC 1014.
U.S. v. McBride, 2013 WL 3840816 (7^th Cir. 2013):

Holding: Even though Defendant used gasoline to set a clothing store on fire that he used as a “front” for drug dealing, where there was no evidence as to the damage the fire caused, who owned the property, or whether anyone’s safety was in jeopardy, the evidence was insufficient to convict of arson.
U.S. v. Jones, 2013 WL 1405876 (7^th Cir. 2013):

Holding: Even though drug crime organization’s was recorded telling Defendant that “he needed Defendant to do what Defendant had done for Sonny,” this was insufficient to prove that Defendant had “cooked” cocaine and to convict him of possession with intent to distribute where there was no evidence who Sonny was or what Defendant did for him in the past.
U.S. v. Owens, 2012 WL 4820616 (7^th Cir. 2012):

Holding: Even though Defendant-zoning inspector received two $600 bribes in exchange for issuing building permits, where the Gov’t failed to link the issuance of the permits to the mortgages or construction costs, this was insufficient to meet the $5,000 amount for federal program bribery.
U.S. v. Costello, 90 Crim. L. Rep. 618 (7^th Cir. 1/31/12):

Holding: A woman who gave her boyfriend a place to stay even though she knew he was in the country illegally was not guilty of harboring an illegal alien in violation of federal law.
U.S. v. Alvarado-Tizoc, 2011 WL 3904083 (7^th Cir. 2011):

Holding: Even though drug companies supplied retailers with drugs, the companies could not be convicted of conspiracy regarding the drugs merely for supplying them where the companies weren’t involved the conspiracy.
U.S. v. Wright, 89 Crim. L. Rep. 695 (7^th Cir. 7/12/11):

Holding: Even though Defendant used criminal proceeds to buy a property that he later sold for a huge profit, this profit does not count toward the $10,000 threshold for prosecution under 18 USC 1957 for engaging in a transaction in criminally derived property worth more than $10,000.
Union Pac. R.R. Co. v. DHS, 94 Crim. L. Rep. 390 (8^th Cir. 12/12/13):

Holding: Tariff Act does not allow Gov’t to fine Railroad for having drugs on trains that come into the U.S. from Mexico, where the Railroad does not own or control the trains while they are in Mexico.
U.S. v. Bruguier, 2013 WL 5911238 (8^th Cir. 2013):

Holding: Defendant must have knowledge of victim’s incapacity or inability to consent, rather than just knowingly engage in a sexual act with victim, in order to be convicted under the victim-incapacity element of sexual abuse statute; although the statute can be read otherwise, it was ambiguous enough that the rule of lenity requires such an interpretation.
U.S. v. Lunsford, 93 Crim. L. Rep. 639 (8^th Cir. 8/5/13):

Holding: SORNA did not require a sex offender-Defendant who moved from his home in Missouri to the Philippines to notify state authorities of his change of residence; nothing in SORNA requires a sex offender to notify authorities that he is moving out of U.S. to a foreign county, and no public policy reason requires this since there is no danger to U.S. children when Defendant leaves the country.
U.S. v. Rouillard, 701 F.3d 861 and U.S. v. Berguier, 2012 WL 6633897, 92 Crim. L. Rep. 333 (8^th Cir. 12/13/12):

Holdings: In these two cases, different panels of the 8^th Circuit reached opposite holdings about whether 18 USC 2242, which prohibits sex with incapacitated persons, requires proof that Defendant knew the victim was incapacitated.
U.S. v. Heid, 2011 WL 3503314 (8^th Cir. 2011):

Holding: Even though Defendant may have known that some drug money was being used when she posted bail for her son, there was no basis to reasonably determine that Defendant conspired to further an illegal purpose in posting bail, so there was no factual basis for money laundering conspiracy.
U.S. v. Tanke, 94 Crim. L. Rep. 702 (9^th Cir. 3/3/14):

Holding: Letters designed to avoid detection of a fraudulent scheme (post-fraud cover-up) will support a conviction for mail fraud only where there is evidence that Defendant came up with the idea of sending the letters before the fraud was completed; without this rule, no mail fraud scheme would ever end so long as Defendant took some action to avoid detection, prosecution or conviction as such action would be seen as carrying out the initial fraudulent scheme.
U.S. v. Wei Lin, 2013 WL 6768104 (9^th Cir. 2013):

Holding: Statutes criminalizing fraud and misuse of visas, permits and other immigration documents did not criminalize the mere possession of an unlawfully obtained driver’s license.
U.S. v. Dejarnette, 2013 WL 6698063 (9^th Cir. 2013):

Holding: SORNA did not require sex offender who was convicted before SORNA’s enactment to register in the jurisdiction of his sex offense conviction when the offender resided in a different jurisdiction.
Valle del Sol Inc. v. Whitting, 94 Crim. L. Rep. 86 (9^th Cir. 10/8/13):

Holding: Ariz. statute that makes it unlawful for a “person who is in violation of a criminal offense” to harbor or transport an alien is void for vagueness because this phrase is unintelligible, and the statute is also preempted by federal law.
U.S. v. Liu, 2013 WL 5433753 (9^th Cir. 2013):

Holding: The “willfully” element of federal copyright infringement requires the Gov’t prove that Defendant knew he was acting illegally, not just that he knew he was making copies.
U.S. v. Mancuso, 93 Crim. L. Rep. 188 (9^th Cir. 5/1/13):

Holding: 21 USC 856(a)(1), which makes it a crime to maintain any place “for the purpose of manufacturing, distributing or using” drugs, requires proof that drug activity was “a principal or primary purpose,” even when the premises are not residential in a nature.
U.S. v. White Eagle, 2013 WL 3357920 (9^th Cir. 2013):

Holding: Bureau of Indian Affairs employee could not be convicted of conversion of tribal funds she borrowed from a tribal credit program, because she never had control or custody of the funds, and (2) employee’s supervisor’s shepherding of employee’s loan application through the approval process was not embezzlement.
U.S. v. Ermoian, 93 Crim. L. Rep. 687 (9^th Cir. 8/14/13):

Holding: Even though Defendant told the Hell’s Angel’s motorcycle club that the FBI was investigating them, this did not violate 18 USC 1512(c), which makes it illegal to obstruct, influence or impair an “official proceeding,” because a mere investigation is not an “official proceeding,” as that term connotes some type of formal hearing and suggests that a person will appear at a formal hearing.
U.S. v. Burke, 2012 WL 4015774 (9^th Cir. 2012):

Holding: Even though Defendant left a supervised release center where he’d been ordered to live as part of supervised release, he was not “in custody” there so could not be convicted of escape from custody where he was not serving a prison sentence, was free to leave during the day with permission, and free to hold employment.
U.S. v. Acosta-Sierra, 2012 WL 3326623 (9^th Cir. 2012):

Holding: Even though Defendant threw a rock at Officer, where Officer did not see it and did not know what happened until the threat of bodily harm had passed, the Officer did not have an objectively reasonable apprehension of imminent bodily harm necessary to convict under a reasonable apprehension of imminent harm theory.
U.S. v. Apel, 2012 WL 1423914 (9^th Cir. 2012):

Holding: The federal government’s lack of the exclusive right or possession as to the stretch of highway that ran through and Air Force base upon which the alleged trespass occurred precluded the conviction for trespassing of a defendant who was barred from entering the base.
U.S. v. Nosal, 91 Crim. L. Rep. 89 (9^th Cir. 4/10/12):

Holding: Statute, 18 USC 1030, that makes it a crime to “exceed authorized access” to a computer is limited to restrictions on “access” and not “use” of the computer; thus, even though Defendant may have violated his employer’s computer use policy, that is not a crime under the statute.
U.S. v. Lequire, 90 Crim. L. Rep. 816 (9^th Cir. 3/5/12):

Holding: An insurance agency treasurer could not be guilty of embezzling insurance company funds he misused because under state law the relationship between the agency and insurance companies was one of creditor and debtor and thus the funds were not held in trust.
U.S. v. Kimsey, 90 Crim. L. Rep. 647 (9^th Cir. 2/8/12):

Holding: A defendant’s failure to comply with local court rules regulating admission to practice law is not the type of willful disobedience of a court “rule” that will support a federal criminal contempt conviction.
U.S. v. Kimsey, 2012 WL 386338 (9^th Cir. 2012):

Holding: Violations of local court rules cannot serve as predicates for criminal convictions under the federal criminal contempt statute.
U.S. v. Havelock, 2012 WL 29347 (9^th Cir. 2012):

Holding: Mailings addressed to newspapers and Web sites could not support a conviction for mailing threatening communications, as addressee was required to be a natural person.
U.S. v. Kuok, 90 Crim. L. Rep. 545 (9^th Cir. 1/17/12):

Holding: Even though the Arms Export Control Act, 22 USC 2778 criminalizes an attempt to export banned items, it does not criminalize someone from attempting to cause a third person to violate the law.
U.S. v. Parker, 2011 WL 365913 (9^th Cir. 2011):

Holding: Evidence insufficient to convict of trespass on military base where Defendant was on a road passing through the base that was a public easement.
U.S. v. Rufai, 2013 WL 5615053 (10^th Cir. 2013):

Holding: Even though Defendant acted as a front for a third party to submit fraudulent Medicare bills by listing only himself as an incorporator or director of a medical supply business and opening bank accounts only in his name, the evidence was insufficient to convict of Medicare fraud because there was no evidence that Defendant knew of the fraud by the third party.
U.S. v. Mathauda, 94 Crim. L. Rep. 496 (11^th Cir. 1/21/14):

Holding: Where Defendant was represented by counsel in an administrative proceeding which resulted in a cease and desist order against Defendant, but Defendant was never actually informed of the order, Defendant was not “willfully blind” of the order, and Gov’t had the burden to prove that Defendant purposely contrived to avoid learning the facts or was aware of a high probability of a fact and consciously avoided confirming that fact.
U.S. v. Fries, 2013 WL 3991917 (11^th Cir. 2013):

Holding: Even though Defendant subjectively believed he was transferring a firearm to an unlicensed person, evidence was insufficient to convict of transferring a firearm to an unlicensed person, where Gov’t failed to present any evidence of transferee’s licensure status; Defendant’s subjective belief was not relevant to the objective facts.
U.S. v. Izurieta, 92 Crim. L. Rep. 620, 2013 WL 718325 (11^th Cir. 2/22/13):

Holding: 18 USC 545 which prohibits importing merchandise “contrary to law” does not apply to those who violate a regulation requiring the holding of imported food for FDA inspection.
U.S v. v. Jimenez, 92 Crim. L. Rep. 489 (11^th Cir. 1/25/13):

Holding: County official who was not the person who made procurement decisions could not be convicted of “intentionally misapplying” the funds under 18 USC 666.


U.S. v. Haile, 2012 WL 2467043 (11^th Cir. 2012):

Holding: Evidence was insufficient to show that Defendant had knowledge of obliterated serial number on gun in prosecution for possessing a firearm with obliterated number where there was no evidence of how long Defendant had actually possessed the gun so he would reasonably know that the serial number was obliterated, and the gun was found in the flatbed of his pickup.
U.S. v. Fulford, 90 Crim. L. Rep. 262 (11^th Cir. 11/14/11):

Holding: In order to enhance sentence for sending child pornography to a minor, the Gov’t must prove the person to whom pornography was sent was an actual minor if the person was not a law enforcement officer; here, the person was an adult male posing as a minor, but was not a law enforcement officer, so the enhancement did not apply.
Hamdan v. U.S., 92 Crim. L. Rep. 109 (D.C. Cir. 10/16/12):

Holding: Support for terrorism did not violate “law of war” at the time Osama bin Laden’s driver drove him so as to support conviction for such offense.
U.S. v. Bennitt, 93 Crim. L. Rep. 366 (C.A.A.F. 6/3/13):