Wake Forest Law Review
25Jan

Fake It Till You Make It: When Silicon Valley’s Culture Turns Criminal

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By Maryclaire M. Farrington

It’s a tale as old as time: the Ivy League dropout turned tech icon.[1]  Media’s maître d’ of tech, Elizabeth Holmes, was fawned by Forbes, Fortune, Time, and the New Yorker, to name a few.[2]  Nearly twenty years after founding Theranos Inc.,[3] her name flashes through the media again.[4]  However, this time, the headlines read “Theranos Founder Guilty of Fraud.”[5]

At nineteen, Holmes sought to “revolutionize the blood-testing industry” by creating a device that would run a full blood workup using a vial of a few drops of the patient’s blood.[6]  In theory, Holmes’s device would run the traditional bloodwork exam with a fraction of the blood, in a fraction of the time, and at a fraction of the cost of the traditional method.[7]

The company operated like a Silicon Valley tech startup that was shrouded in secret[8] and made “big promises . . . with little proof.”[9]  Operating under the protection of secretive and complex technological promises, Holmes adopted a “fake it till you make it” attitude, making empty promises to investors that she would deliver on her blood testing machine.[10]  Holmes’s “fake it till you make it” attitude worked.  With the help of $400 million from investors, Theranos was valued at $9 billion at its peak.[11]  But despite the company’s explosion of good press and high valuations, the science wasn’t working: the tests weren’t reliable, and the blood was actually being shipped and tested using traditional machines.[12]  Theranos denied the rumors, but dodged questions citing “trade secrets.”[13]

In 2018, Holmes was charged with two counts of conspiracy to commit wire fraud and ten counts of wire fraud,[14] including the accusation that Holmes defrauded both investors as well as patients.[15]  One of the conspiracy charges and several of the wire fraud charges alleged that Holmes defrauded investors.[16]  The other conspiracy charge and the remaining wire fraud charges alleged she defrauded patients and doctors.[17]  The jury found Holmes guilty of the investor conspiracy count and three counts of investor wire fraud, which included wire transfers above $140 million.[18]  Holmes was acquitted of the patient wire fraud count, three wire fraud counts, and one count of patient wire fraud was dismissed during trial. [19]  The final three investor fraud counts resulted in a hung jury. [20]  So how did the Silicon Valley business mogul turn criminal?

Special Agent in Charge Bennett said, “This conspiracy misled doctors and patients about the reliability of medical tests that endangered health and lives.”[21]  But, the jury did not find the Theranos founder guilty of the four total counts of fraud for misleading patients and the inaccuracy of the blood tests.[22]  This is likely explained by the fact that  Holmes was directly involved in the investor fraud, while she was not so directly involved in defrauding patients and customers.[23]  The blurred lines between Holmes and doctors and patients made it much more difficult for the prosecution to prove those counts of fraud.[24]  Yet, some say that while the relationship is less clear, Holmes clearly “crossed a moral boundary,” and the not-guilty verdicts “represent an important missed opportunity for the legal system to restrain Silicon Valley’s dangerous embrace of ‘disruption’ at all costs by calling the intentional disregard for the public’s welfare a crime.”[25]

In retrospect, Theranos was built on smoke and mirrors—big promises and bigger secrets.  Indeed, Silicon Valley startup culture is often “hyperbolic” and based on “puffery,” and the trial court (and the jury) seemed to believe Holmes when she claimed she truly thought the Theranos technology would transform into what she advertised.[26]  Yet, Holmes’s technology wasn’t just another “typical start-up”[27]—Holmes built medical devices, not apps.[28]  But confidence and ambition trumped science and reason, and even investors with knowledge in healthcare trusted the innovators and the process.[29]  Perhaps the Theranos trial is an opportunity for investors and the public to reconsider their trust in the Silicon Valley system and to demand results instead of promises.

Calls for change to Silicon Valley have already begun.  Jina Choi, director of the SEC’s San Francisco Regional Office, said, “The Theranos story is an important lesson for Silicon Valley . . . . Innovators who seek to revolutionize and disrupt an industry must tell investors the truth about what their technology can do today, not just what they hope it might do someday.”[30]  Alternatively, in order to keep corporations and their officers accountable, some propose that federal agencies such as the Food and Drug Administration should be given greater resources to properly investigate and review bourgeoning startups.[31]

A 2019 New York Times article nearly predicted the exact outcome of the Theranos trial: “The challenge with charging corporate executives is that they are often insulated from the decisions that violate the law.  That can make it difficult, if not impossible, for prosecutors to prove they have the requisite intent.”[32]  In 2019, some politicians and legal experts, including Elizabeth Warren, suggested that the requirement of criminal intent for fraud should be replaced with a negligence standard.[33]  Warren’s proposed 2019 “Corporate Executive Accountability Act” would hold executives liable if they “negligently permit or fail to prevent a violation of law.”[34]  Such a law would undoubtably change Silicon Valley—but morally for the better.

Though it is promising that Holmes was investigated and eventually held responsible for investor conspiracy and wire fraud,[35] it is imperative to recall Holmes’s ability to captivate investors and the general public alike.[36]  Furthermore, the reasoning for her acquittal on the charges regarding patients was the lack of direct involvement with patients, yet her strategies were the same.[37]  If courts were to hold executives to a negligence standard, then Holmes’s trial would likely have a different outcome and find Holmes guilty of patient-related fraud. [38]  Change is necessary in Silicon Valley, and holding executives accountable is the ultimate mechanism to promote justice.

[1] See, e.g., Raqeebah, Theranos and the Continuing Allure of the Ivy League Dropout, Medium (Sept. 10, 2020), https://medium.com/swlh/theranos-and-the-continuing-allure-of-the-ivy-league-dropout-a8e8e8f97113; see also, e.g., Noah Kulwin, Theranos CEO Elizabeth Holmes’s Five Best Cover Story Appearances, Ranked, Vox: Recode (Oct. 26, 2015, 4:04 PM), https://www.vox.com/2015/10/26/11620036/theranos-ceo-elizabeth-holmess-five-best-cover-story-appearances.

[2] Kulwin, supra note 1.

[3] Zaw Thiha Tun, Theranos: A Fallen Unicorn, Investopedia  https://www.investopedia.com/articles/investing/020116/theranos-fallen-unicorn.asp (Jan. 4, 2022).

[4] See, e.g., Kulwin, supra note 1.

[5] See, e.g., James Clayton, Elizabeth Holmes: Theranos Founder Convicted of Fraud, BBC News (Jan. 4, 2022), https://www.bbc.com/news/world-us-canada-59734254; Michael Liedtke, Theranos Founder Elizabeth Holmes Convicted of Fraud and Conspiracy, Time, https://time.com/6132636/elizabeth-holmes-guilty/ (Jan. 4, 2022, 2:38 AM).

[6] Tun, supra note 3; Ken Auletta, Blood, Simpler, The New Yorker: Annals of Innovation (Dec. 8, 2014), https://www.newyorker.com/magazine/2014/12/15/blood-simpler.

[7] Auletta, supra note 6.

[8] Id.

[9] Kari Paul, Elizabeth Holmes Trial: Silicon Valley Watches Next Steps in High-Profile Case, The Guardian (Jan. 4, 2022, 2:30 PM), https://www.theguardian.com/technology/2022/jan/04/elizabeth-holmes-conviction-silicon-valley.

[10] Timothy B. Lee, How a Culture of Secrecy Set Theranos up for Failure, Vox (Oct. 23, 2015, 12:50 PM), https://www.vox.com/2015/10/23/9603442/theranos-elizabeth-holmes-secrecy.

[11] John Carreyrou, Hot Startup Theranos Has Struggled with Its Blood-Test Technology, Wall St. J. https://www.wsj.com/articles/theranos-has-struggled-with-blood-tests-1444881901 (Oct. 16, 2015, 3:20 PM).

[12] Id.

[13] Id.

[14] Press Release, U.S. Dep’t of Just., Theranos Founder Elizabeth Holmes Found Guilty of Investor Fraud (Jan. 4, 2022), https://www.justice.gov/usao-ndca/pr/theranos-founder-elizabeth-holmes-found-guilty-investor-fraud.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Press Release, U.S. Dep’t of Just., Theranos Founder and Former Chief Operating Officer Charged in Alleged Wire Fraud Schemes (June 15, 2018), https://www.justice.gov/usao-ndca/pr/theranos-founder-and-former-chief-operating-officer-charged-alleged-wire-fraud-schemes.

[22] Noam Cohen, The Elizabeth Holmes Verdict and the Legal Loophole for ‘Disruption’, Wired (Jan. 5, 2022, 3:57 PM), https://www.wired.com/story/holmes-theranos-legal-loophole-disruption/.

[23] Id.

[24] Brandon Kim, Legal Experts Divided Over Elizabeth Holmes Verdict’s Accuracy, Significance of Case, The Stanford Daily (Jan. 6, 2022, 8:21 PM), https://stanforddaily.com/2022/01/06/legal-experts-divided-over-elizabeth-holmes-verdicts-accuracy-significance-of-case/.

[25] Cohen, supra note 22.

[26] Kim, supra note 24.

[27] Erin Woo, What Elizabeth Holmes’s Trial Means for Silicon Valley, N.Y. Times (Nov. 23, 2021), https://www.nytimes.com/2021/11/23/technology/elizabeth-holmess-trial-silicon-valley.html.

[28] Id.

[29] James Clayton, Elizabeth Holmes: Has the Theranos Scandal Changed Silicon Valley?, BBC News (Jan. 4, 2022), https://www.bbc.com/news/technology-58469882.

[30] Erin Griffith, Theranos and Silicon Valley’s ‘Fake It Till You Make It’ Culture, Wired (Mar. 14, 2018, 3:12 PM), https://www.wired.com/story/theranos-and-silicon-valleys-fake-it-till-you-make-it-culture/.

[31] Clayton, supra note 29.

[32] Peter J. Henning, Elizabeth Warren Wants to Make It Easier to Prosecute Executives,  N.Y. Times (Apr. 22, 2019), https://www.nytimes.com/2019/04/22/business/dealbook/elizabeth-warren-finance-executives.html.

[33] Id.

[34] Id.

[35] Press Release, U.S. Dep’t of Just., supra note 14.

[36] See, e.g., Carreyrou, supra note 11.

[37] See Cohen, supra note 22.

[38] See Henning, supra note 32.

Post image by Marco Verch Professional Photographer on Flickr

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29Mar

Weekly Roundup – 3/25-3/29

Categories: 4th Cir. Blog Civil Cases Criminal Cases Weekly Roundup
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R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 

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26Mar

Weekly Roundup – 3/19 – 3/23

Categories: 4th Cir. Blog Weekly Roundup
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By: Ashley Collette & Evan Reid

Jimenez-Cedillo v. Sessions

A Mexican citizen present in the United States without authorization pled guilty to sexual solicitation of a minor.  The Board of Immigration Appeals determined that this offense was a crime involving moral turpitude and ordered him removed from the United States.  In doing so, the Board departed from its rule “that an offense must require proof of a culpable mental state as to the victim’s age to qualify as a crime involving moral turpitude.”  The Board did not adequately explain its reasoning for “abandon[ing] the requirement of mental culpability as to a victim’s age”, and thus the Fourth Circuit held its decision was arbitrary and capricious.  The case was remanded for a more adequate explanation.

U.S. v. McCollum

In this criminal case, the defendant, Taison McCollum, appealed the district court’s decision applying a sentence enhancement based on his prior conviction for conspiracy to commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) after McCollum pled guilty to the possession of a firearm by a convicted felon.  The Fourth Circuit reluctantly vacated the judgment of the district court and remanded the case back to the district court for resentencing.  In holding that the district court erred in enhancing McCollum’s sentence, the Fourth Circuit followed the Supreme Court precedent in Taylor v. United States, which held “an enhanced sentence is lawful only if the prior conviction necessarily establishes that the defendant ‘has been found guilty of all the elements’ of the enumerated offense” because the crime of conspiracy under § 1959(a)(5) does not require an overt act and thus is broader than generic conspiracy.

 

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20Feb

Fourth Circuit Affirms Sentencing Enhancements for “Relevant Conduct”

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.” United States v. Brack, 651 F.3d 388, 393 (4th Cir. 2011). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.

Disposition

The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

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16Nov

The Fourth Circuit Remands Qui Tam Proceedings Based on Possible Fraud Leading to Successor Corporate Liability

Categories: 4th Cir. Blog Civil Cases
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By M. Allie Clayton

On November 15, 2016, the Fourth Circuit released a published opinion in the civil case of United States v. Government Logistics N. V., and held that, while the substantial continuity test for successor corporate liability did not apply, the factual allegations regarding the fraudulent transaction test could not be resolved in this case except by a fact finder, and thus reversed.

Facts and Procedural History

This complex case began over fifteen years ago as a bid-rigging scheme by shipping businesses in order to defraud the United States. The Fourth Circuit has entertained appeals from decisions in this case at three different points throughout the litigation.

This case began in the year 2001, when Gosselin Group N. V. (then known as Gosselin World Wide Moving, N. V.) and at least one other entity, the Pasha Group, implemented a bid-rigging scheme with regard to two government programs—the International Through Government Bill of Lading (“ITGBL”) program and the Direct Procurement Method (“DPM”) program—that facilitate the trans-Atlantic shipping of household goods that belong to military and domestic personnel. The ITGBL program involves the Department of Defense (“DOD”) soliciting bids from domestic freight forwarders, and those domestic forwarders subcontract foreign operations to businesses overseas. The DPM program involves the DOD soliciting bids from international businesses. Both programs were administered by the Army’s Military Transport Management Command (the “MTMC”).

The Gosselin defendants (Gosselin Group N. V., Gosselin World Wide Moving N. V., and Gosselin Group’s CEO and former managing director, Marc Smet) and the Pasha Group (“Pasha”) implemented a bid-rigging scheme in which they increased the prices that the DOD paid to ship goods to and from Europe under the ITGBL and DPM programs. This led to the DOD paying millions of dollars more than it should have paid. Those bid-rigging schemes did not go undetected, and led to the qui tam proceedings in this case, and successful criminal prosecutions. Qui tam proceedings are lawsuits in which a whistleblower brings a civil claim pursuant to the False Claims Act (“FCA”). Under the FCA, 31 U.S.C. § 3730, whistleblowers are rewarded for assisting the United States in recovering any money lost to the defendants, up to 25% of the proceeds if the government participates, and up to 30% of the proceeds if the government does not participate.

The Criminal Prosecutions

In November of 2003, a grand jury returned a two-count indictment against Gosselin Group and Smet that charged each with “conspiracy to restrain trade, in violation of 15 U.S.C. § 1, and conspiracy to defraud the United States, in contravention of 18 U.S.C. § 371.” In February 2004, Gosselin Group and Pasha agreed to be charged and prosecuted by criminal information for the conspiracy offenses. Gosselin Group N. V. and the Pasha Group entered conditional guilty pleas to a pair of criminal conspiracy offenses. Smet signed the plea both for himself and for the Gosselin Group, thereby escaping further criminal prosecution. Pursuant to that plea agreement, both the Gosselin Group and Pasha admitted to various elements of the conspiracy. The plea agreement was accepted on February 18, 2004. As a result of a contemporaneous agreement between Smet and the Army, Smet was barred from doing business with the United States for three years (March 2004-March 2007). A United States Management Team—consisting of four Gosselin Group employees: COO Stephan Geurts St., Stephan Geurts Jr., Timotheus Noppen, and Ludi Bokken—was created within Gosselin Group to allow Gosselin Group to continue working with DOD, in the absence of Smet.

Under the plea agreement, Gosselin Group and Pasha were able to pursue an immunity claim in the district court to seek dismissal of both the charges lodged in the information. The two defendants claimed that the bid-rigging scheme was immune from federal prosecution. In August 2004, the Eastern District of Virginia dismissed one of those charges, finding that certain provisions of the Shipping Act granted Gosselin Group and Pasha immunity from federal prosecution on the antitrust conspiracy. However, the district court also found that the defendants did not have immunity from prosecution on the charge of conspiracy to defraud the United States. Therefore, the two defendants were sentenced only on the latter charge. This decision led to cross appeals from the defendants and the United States. The Fourth Circuit determined that immunity did not apply to either charge, and further held that the defendants were both criminally liable for both conspiracies and remanded to the district court for resentencing. United States v. Gosselin World Wide Moving, N. V., 411 F. 3d 501 (4th Cir. 2005). The resentencing proceedings began in 2006. The district court imposed a $6 million dollar fine on Gosselin Group, and two separate $4.6 million dollar fines on Pasha. The court also ordered both defendants to make restitution to the DOD in the sum of $865,000.

The Qui Tam Proceedings

In 2002, realtors Kurt Bunk and Ray Ammons (the “Realtors”) brought qui tam proceedings against the Gosselin defendants under the FCA. Bunk filed his qui tam action alleging an FCA claim related to the DPM program in the Eastern District of Virginia in August of 2002. Ammons filed his qui tam action alleging an FCA claim related to the ITGBL program (“ITGBL claim”) and to Gosselin Group exerting pressure on Covan International (“Covan claim”) and Cartwright International Van Lines (the “Cartwright claim”) to submit higher ITGBL claims. These cases were sealed, pursuant to 31 U.S.C. § 3730, and remained under seal and pending while the criminal cases were resolved.

Once the criminal proceedings were resolved in 2006, the Department of Justice (“DOJ”) gave the Gosselin defendants notice of the two pending qui tam actions. The DOJ not only detailed the false claims and bid rigging evidence that was underlying the qui tam actions, but also advised the Gosselin defendants that the United States might intervene. In January 2007, the DOJ sent a settlement demand to the Gosselin defendants.

Smet conveyed his frustration regarding the criminal liability and pending civil matters to Geurts Jr. Later Smet approached Jan Lefebure, the Managing Director of International Freight Forwarding Service—the company that handled Gosselin Group’s commercial exports—with a proposal to move Gosselin Group’s business as it related to the United States to another business entity. Lefebure owned another corporation called Brabiver—described as a “company doing nothing” but that had “a license for transportation or freight forwarding.” Smet proposed to Lefebure a scheme to rebrand and reopen Brabiver and move all of his [a.k.a. Gosselin Group’s] government contracts into Brabiver.

On June 27, 2007, Smet made several interest free loans, totaling over €100,000 to the four principles involved in the Brabiver venture, Noppen, Geurts Jr., Lefebure, and Rene Beckers. The loans were not secured, and only repayable on Smet’s demand, but that never occurred. The next day, Smet’s principles used the loans to purchase shares in Brabiver and formalize the change from Brabiver to GovLog. The very next day, GovLog and Gosselin Group entered into a series of agreements that were memorialized by contracts with terms dictated by Smet, not negotiated, and drafted by Smet’s attorneys and presented by Smet to the GovLog principals. These agreements transferred Gosselin Group’s business with the DOD to GovLog, and also committed GovLog to exclusively use Gosselin Group and its related entities to perform said DOD contracts. In exchange for Gosselin Group’s business with DOD, GovLog did not pay, but promised Gosselin Group a percentage of its future net revenue—“all of those revenues received by GovLog . . . minus the amount of the [services] invoiced by [Gosselin Group] to GovLog in connection with the services provided to GovLog by Gosselin Group and its subsidiaries.” Once GovLog obtained Gosselin Group’s DOD contracts, it began its shipping operations on behalf of Gosselin Group on July 1, 2007—approximately four days after Smet made loans to the GovLog Principals.

GovLog consisted of 20 employees, all but one of whom were previous Gosselin Group employees. Their sole business was signing contracts with DOD and arranging shipping services for DOD, but GovLog was not responsible for any actual shipping, nor did it have any warehouses (GovLog leased warehousing facilities from Gosselin Group). All GovLog actually owned was a couple of automobiles, a chair, and a table. GovLog earned no net revenues during 2007 or 2008, and thus was not obligated to pay any funds to Gosselin Group in exchange for Gosselin Group’s business with the DOD. However, GovLog did pay for the leased warehouse facilities and other services provided by Gosselin Group, which essentially meant that any “money that’s going to GovLog is actually ending up being paid to Gosselin.”

Later that year, on November 7, 2007, Ammons’s qui tam action was transferred to the Eastern District of Virginia and consolidated with Bunk’s qui tam action. In 2008, the Realtors’ complaints were unsealed, but on July 18, 2008 Ammons’s qui tam action was superseded by the government’s Complaint in Intervention under 31 U.S.C. § 3730(b)(2). The government did not intervene in Bunk’s qui tam suit. In the Complaint in Intervention, the government named GovLog as a defendant, and alleged that GovLog was “a successor/transferee in interest of Gosselin [Group].” On October 2, 2008, Bunk filed his Second Amended Complaint, which included GovLog as a named defendant and alleged successor corporation liability claim against GovLog.

The Bunk Complaint pleaded numerous FCA theories of liability against the Gosselin defendants and others. Bunk joined several additional complaints, including a 42 U.S.C. § 1985 claim and state law claims. However, only his DPM claim was not superseded by the government’s Complaint in Intervention. In 2011, the government and the Relators moved for summary judgment on the issue of whether GovLog was liable as a successor corporation of Gosselin Group. The district court severed the claims against GovLog from those against the Gosselin defendants, and then proceeded to conduct a trial to first resolve the claims against the Gosselin defendants.

On July 18, 2011, the jury trial for the Gosselin defendants began on the DPM, ITGBL, and Covan claims. At the close of the government’s case, the district court awarded judgment as a matter of law to the defendants on the ITGBL claim, and submitted the DPM and Covan claims were submitted to the jury. On August 4, 2011, the jury returned a verdict against the Gosselin defendants on the DPM claim and in favor of the Gosselin defendants on the Covan claim. Despite evidence establishing that the defendants had submitted over 9,000 false invoices to the DOD, the district court did not impose any civil penalties, reasoning that such an award would be unconstitutionally punitive (each false claim authorized a minimum civil penalty of $5,500, which would have resulted in a cumulative penalty in excess of $50 million dollars).

Both parties appealed. Bunk challenged the district court’s denial of civil penalties, the government challenged the court’s award of judgment on the ITGBL claim, and the Gosselin defendants argued that Bunk lacked standing. The Fourth Circuit rejected the Gosselin defendants’ standing argument, and directed the court to amend its civil penalties judgment and award $24 million dollars in civil penalties on the DPM claim. The Fourth Circuit also vacated the grant of judgment in favor of the Gosselin defendants on the ITGBL claim and remanded the matter for further proceedings.

Once the claims against the Gosselin defendants were resolved, the district court proceeded to determine the successor corporation liability claims pending against GovLog. The district court initially focused on identifying the applicable legal test for successor corporation liability claim. In September 2014, the district court ruled that application of Carolina Transformer’s substantial continuity test would be inconsistent with the Supreme Court’s decision in Bestfoods. United States v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992); United States v. Bestfoods, 524 U.S. 51 (1998). The court then found that only traditional common law principles governed the issue of GovLog’s liability as a successor corporation.

On November 3, 2014, the Relators and the government moved for summary judgment, relying on the common law’s fraudulent transaction theory of successor corporation liability. Bunk presented two theories of successor corporation liability against GovLog: (1) the substantial continuity theory, and (2) the fraudulent transaction theory. GovLog cross-moved for summary judgment, stating that the theory proposed by the government and the Relators was entirely speculative. On December 23, 2014, the district court granted judgment to GovLog under two theories: (1) neither complaint had properly alleged that GovLog was liable as a successor corporation under any recognized legal theory; and (2) GovLog was entitled to summary judgment for want of a genuine dispute of material fact. The court ruled that the transactions between GovLog and Gosselin Group were not shown to have been pursued with a fraudulent intention because there was “no evidence sufficient to establish any of the recognized ‘badges of fraud’” in regard to the creation or operation of GovLog. On December 29, 2014, the court entered judgment in favor of GovLog. The Relators appealed from the judgment, and the Fourth Circuit has jurisdiction under 28 U.S.C. § 1291.

The Initial Jurisdictional Question

Initially, the Fourth Circuit addressed whether or not the district court had subject matter jurisdiction over Bunk’s successor corporation complaint. The Fourth Circuit found that the court possessed supplemental jurisdiction over Bunk’s claim. Bunk’s FCA claim provided original jurisdiction under 28 U.S.C. § 1331. The question remained whether the successor corporation liability claim revolves around the same central fact pattern as the original FCA claim against the Gosselin defendants. The Fourth Circuit held that GovLog’s successor corporate entity liability is wholly dependent on the Gosselin defendants’ liability. Because the “successor corporation liability question is part and parcel of Bunk’s original qui tam action,” the district court did not err in exercising supplemental jurisdiction on this claim.

The Alleged Errors

The Fourth Circuit had to decide whether or not the district court erred by entering judgment in favor of GovLog on the successor corporation liability issue. Bunk challenged the three rulings of the District Court: (1) that the substantial continuity test is inconsistent with Supreme Court precedent; (2) that Bunk had not adequately pleaded the fraudulent transaction theory; and (3) that the fraudulent transaction theory was without evidentiary support, thus leaving no genuine issue of material fact and entitling GovLog to summary judgment.

Successor Corporation Liability Theories

There are four exceptions from the general rule that a corporation that acquires the assets of another corporation does not acquire its liabilities. Under federal common law, a successor corporation takes on the liabilities of its predecessor if: (1) the successor agrees to assume the liabilities; (2) the transaction is a de facto merger; (3) the successor may be considered a “mere continuation” of the predecessor; or (4) the transaction is fraudulent. United States v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992).

Under exception (3), the mere continuation theory states that liability can pass to the successor if “after the transfer of assets, only one corporation remains.” This is not applicable to Bunk’s case because two corporations were viable after the transfer of assets. However, there was another theory proposed in Carolina Transformer—the substantial continuity theory. Substantial continuity theory allows a court to look at eight factors to determine whether successor corporation liability should be imposed. However, the Supreme Court stated in United States v. Bestfoods that “‘[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.’” United States v. Bestfoods, 524 U.S. 51 (1998) (quoting United States v. Texas, 507 U.S. 529 (1993)). Because the FCA doesn’t speak to successor corporation liability, it has “no impact on the traditional common law principles governing successor corporation liability.” Therefore, the district court did not err in declining to apply the substantial continuity test.

Bunk also relied on exception (4), the “fraudulent transaction theory of successor corporation liability.” Because this was dismissed on a motion for summary judgment, the Fourth Circuit reviewed whether the pleadings were legally sufficient under a de novo standard of review. The Fourth Circuit did not decide whether the heightened standard of pleading in Fed. R. Civ. P. 9(b) applied because the Court stated that even if there was a heightened standard it was satisfied in this case. The Bunk Complaint sufficiently outlined the dealings between GovLog and Gosselin Group that formed a solid foundation for the fraudulent transaction theory. Therefore, the district court erred in dismissing Bunk’s successor corporation liability claim as insufficiently pleaded.

The Fraudulent Transaction Theory

However, because the district court ruled in the alternative that GovLog was entitled to summary judgment on Bunk’s fraudulent transaction theory, the Fourth Circuit had to also address whether the summary judgment award was warranted.

Because direct evidence of intent to defraud is rare, courts have developed recognized “badges of fraud” that constitute indirect and circumstantial evidence. Those “badges of fraud” include; (1) the conveyance is to a spouse or near relative; (2) inadequacy of consideration; (3) transactions different from the usual method of transacting business; (4) transfers in anticipation of suit; (5) retention of possession by the debtor; (6) transfer of all or nearly all of the debtor’s property; (7) insolvency caused by the transfer; (8) failure to produce rebutting evidence when the circumstances surrounding the transfer are suspicious; or (9) transactions in which the debtor retains benefits.

In this situation the court found that the evidence did not simply fail to dispel the required fraudulent intention, but it could easily establish it. The Fourth Circuit found that “[a]t least four of the badges of fraud are readily apparent on the evidence . . .:” (1) inadequacy of consideration; (2) transactions different from the usual method of transacting business; (3) transactions in anticipation of suit or execution; and (4) transactions through which the debtor retains benefits. The consideration was found to be grossly inadequate because, in effect, GovLog paid nothing for the business interests it received from Gosselin Group. The transaction was made in haste and with little input from GovLog or any GovLog owners, and Smet was in control of every facet of the transaction—which is not something that occurs in the usual mode of transacting business. Also, the Fourth Circuit found that a reasonable juror could find that Gosselin Group continued to reap the benefits of the business that it transferred to GovLog. But the most suspicious aspect, according to the Fourth Circuit, was the timing of the transaction. “[T]he temporal proximity of the Gosselin defendants’ being advised of the qui tam actions and the GovLog transaction being consummated suggests that the transaction was made to defraud Bunk and the United States out of civil penalties.”

Disposition

According to the Fourth Circuit, the various factual disputes in this case cannot be resolved by anyone except a factfinder. Therefore, the district court erred in awarding summary judgment to GovLog. The Fourth Circuit vacated the judgment and the case was remanded to the district court for further proceedings.

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18Nov

Nephew/Uncle Conspiracy to Sell “Stolen” Marlboros Remanded Back for Resentencing

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By Mikhail Petrov

Today, in the published criminal case of United States v. Qazah, the Fourth Circuit affirmed the Defendants’ convictions, but vacated their sentences and remanded the case back for resentencing. The Defendants, Kamal Qazah, better known by his street name Keemo, and his uncle Nasser Alquza, were convicted for a conspiracy to receive and transport stolen cigarettes in interstate commerce as well as money laundering. Two issues were before the Fourth Circuit. The first issue was whether undercover law enforcement agents had a proper warrant. The second issue was in the calculation of the Defendants’ sentences using the Sentencing Guidelines. The Fourth Circuit affirmed the district court’s decision to dismiss the Defendants’ motion to suppress evidence but vacated the Defendants’ sentences and remanded for resentencing.

A Business Deal Too Good…

In 2010 and 2011, Qazah, in conspiracy with others, purchased thousands of cases of purportedly stolen Marlboro brand cigarettes manufactured by Phillip Morris. Qazah didn’t know that he was actually buying Marlboros from undercover law enforcement officers. Qazah made big money by selling the purportedly stolen cigarettes, on which state taxes had not been paid, to convenience stores in South Carolina. Qazah even brought his uncle, Nasser Alquza, into the business.

In November 2011, the undercover officers arranged the final controlled purchase, agreeing to deliver 1,377 cases of cigarettes to a warehouse owned by Alquza for $1.8 million. Instead of completing that transaction, however, law enforcement officers arrested Qazah and Alquza at Qazah’s house, where they also executed a search warrant and recovered, among other things, $1.3 million in cash and a notebook in which Qazah had recorded his cigarette sales to various retailers. That same day, officers executed another search warrant at Alquza’s house, recovering relevant financial records and false identification documents.

The problem arose with the warrant used by the undercover agents.  The warrant used to search Alquza’s house had an attachment, Attachment B, which was prepared in connection with Qazah’s warrant. Thus, Attachment B that the undercover agents intended to include for Alquza’s house should have specified documents relating to “Nasser ALQUZA” in paragraph one, rather than those relating to “Kamal QAZAH.” The warrant had previously been emailed to the magistrate judge, with Attachment B in its proper place. When it was presented to the judge for her signature, Attachment B was with the wrong warrant.

The Procedural History – The Deficient Warrant and The Sentencing Guidelines

Alquza had filed a motion to suppress the evidence seized during the search on the grounds that the warrant was incorrect. Following a hearing, the district court denied the motion to suppress, finding that the incorrect attachment was a clerical error. The district court concluded that the evidence recovered in the search was admissible under the good-faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897 (1984).

With the motion to suppress denied, the presentencing report for Qazah recommended that he be held responsible for 8,112.66 cases of cigarettes, with a retail value of $24,337,980, and Alquza for 2,909.66 cases, with a retail value of $8,728,980. Based on those loss amounts, the reports applied a 22-level enhancement to Qazah’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(L) (2012), and a 20-level enhancement to Alquza’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(K) (2012). In coming up with the dollar amounts of the “stolen” cigarettes, the district court valued the retail price of the cigarettes at $3,000 per case, as distinct from the wholesale value of $2,126 per case.

The Deficient Warrant

Alquza first contends that the district court erred in denying his motion to suppress the evidence seized from his house. The district court found that the error here was a technical one, and did not influence the warrant’s issuance, nor adversely affect its execution. Alquza contended that the warrant did not satisfy the Fourth Amendment’s particularity requirement.

The Fourth Circuit found that the good-faith exception, as explained by the district court, applied to the deficient warrant. In this case, the magistrate judge had seen the correct warrant on her email, even though she signed the one with Attachment B. The Leon Court held that, the exclusionary rule should not be applied to bar the government from introducing evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant was ultimately found to be deficient.

Thus, the Fourth Circuit concluded that the magistrate did not wholly abandon her judicial role in issuing the warrant. See Leon, 468 U.S. at 923. Nor did she “merely rubber stamp the warrant.” United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008). To the contrary, the magistrate judge examined the email version of the proposed warrant, which was the correct version, before deciding to sign it, although she unwittingly signed an incorrect version. Alquza does not challenge the correct version that was considered by the judge.

Most importantly, the Fourth Circuit found that the suppression of evidence recovered in this case would have almost no deterrent effect because the officers were acting in good faith. The Supreme Court has repeatedly explained that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations” and that exclusion is appropriate only when “the deterrence benefits of suppression . . . outweigh its heavy costs.” Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011). Thus, the decision of the district court on the warrant was affirmed.

District Court Erred in Applying the Sentencing Guidelines  

The Defendants appeal the decision to use the retail value of the cigarettes rather than their wholesale value in evaluating their sentencing range under the Sentencing Guidelines. In rejecting the wholesale value of the cigarettes as the appropriate measure of loss, the district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to conclude that it should apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether that value in fact represented a loss.

In the version of the Sentencing Guidelines used in sentencing the Defendants, the Application Notes explain that the “intended loss” is determined by “the pecuniary harm that was intended to result from the offense.” Thus, as the Fourth Circuit has observed before, “the general rule is that loss is determined by measuring the harm to the victim” of the offense committed. United States v. Ruhe, 191 F.3d 376, 391 (4th Cir. 1999).

The victim, of course, is determined by the nature of the offense and the impact of its violation. In this case, the Defendants were told–and they believed–that they were receiving cigarettes stolen from Philip Morris trucks in either Virginia or Tennessee.

Thus, for the purpose of determining the loss that was intended to result from the offense, the court must identify and focus on the intended victim or victims of the offense of receiving and selling stolen property. Had the cigarettes actually been stolen, the most obvious victim would have been the property’s true owner, which the Defendants believed to be Philip Morris, the cigarettes’ manufacturer. This makes Philip Morris the most obvious intended victim of the conspiracy offense. Philip Morris’ loss would have been the amount of money that it would have otherwise received for selling the purportedly stolen cigarettes, a figure that the record indicates was an average of $2,126 per case.

Still, the Fourth Circuit held that the question about the identity of the intended victim and its losses are a question of fact for the district court to resolve. However, the district court in this case appeared to conclude, without making any such inquiries, that the cigarettes’ retail market value was the appropriate measure of loss simply because the Guidelines required it to apply the “greater intended loss,” and the cigarettes’ retail value was greater than their wholesale value. Thus, the sentence is vacated and remanded back to the district court for a determination of the victim and the proper amount that is lost or taken away from the victim.

Holding of The Fourth Circuit

The Fourth Circuit affirmed the district court’s decision to deny the motion to suppress but vacated the Defendants’ sentences and remanded back for resentencing while allowing the district court to expand its inquiry into the intended victim or victims of the relevant offenses and to recalculate the Defendants’ sentencing ranges based on its findings and conclusions about the amount of loss that they intended to result from their commission of the offense.

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11Nov

Fourth Circuit Revisits Sex Trafficking Case

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By Malorie Letcavage

On August 18, 2015 the Fourth Circuit Court of Appeals issued its published opinion in the criminal case of United States v. Fuertes. In this case, the Court had to review the conviction of German de Jesus Ventura and Kevin Garcia Fuentes for conspiracy to commit and commission of sex trafficking and related offenses. The Court affirmed Fuertes’ conviction and vacated Ventura’s conviction on Count Seven and remanded for judgment of acquittal.

Background

German de Jesus Ventura was operating brothels in Annapolis, Maryland with the help of Kevin Garcia Fuentes. Ventura threatened any local competitive pimps with violence. A local competing pimp, Ramirez, received threatening phone calls and was subsequently murdered. When Fuertes was arrested for a traffic violation, the phone number he gave matched the one that made the threatening phone calls to Ramirez. Fuertes also had business cards for his prostitution services on him when he was arrested. Fuertes consented to a search of his home and the police found that it was being used as a brothel. The police continued to monitor Fuertes and Ventura because they believed the two had murdered Ramirez. The police discovered that Ventura was also running brothels. Rebeca Duenas Franco testified that she had a violent history with Ventura, and that he forced her to commit sexual acts against her will through violence and threats. She also stated that she witnessed Fuertes and Ventura celebrating Ramirez’s murder.

The police continued surveillance and learned of other brothels the Defendants were running. They had intelligence that the two would be transporting a prostitute across state lines and that another local pimp was assaulted at the behest of Fuertes and Ventura. The Defendants were arrested in 2011 and indicted on seven charges relating to prostitution and sex trafficking. Fuertes and Ventura appealed their guilty charges claiming errors regarding evidentiary rulings, jury instructions and sufficiency of evidence.

Evidence Under 404b

Defendants claimed that the evidence of violent acts and violence against competitors was improperly admitted. The Court disagreed and held it was properly admitted under the Federal Rules of Evidence 404(b). This rule allows evidence of bad acts if they are admitted for a purpose other than to prove character. The evidence must also be necessary to prove an element of the crime, be reliable, and its probative value must not be substantially outweighed by prejudice. The Court found the violent acts relevant because they showed evidence of Defendant’s participation in the sex trafficking business and that they knowingly conspired to participate in that business. Since the jury had to find an overt act in furtherance of the conspiracy, the threat to use violence against competitors went towards that element.

Further, Defendants did not offer evidence that the information was unreliable or unfair. Since there was already substantial evidence about the violence committed against Duenas, the further evidence of violence was no more likely to cause the jury to react with their emotions instead of their intellect than her testimony of Defendants’ violent behavior. The Court held that the admission of the evidence of violence against other pimps was allowed, and not an abuse of discretion.

Expert Testimony Properly Admitted

The Defendants also argued that the testimony of Dr. Baker was improperly allowed because her experience was mostly with juveniles and was only attempting to bolster Duenas’ credibility about the source of her injuries. The Court disagreed based on Rule 702 concerning expert witnesses. It held that the scientific nature of the testimony meant that the district court as the gatekeeper had properly determined that it was relevant and reliable. It found that Dr. Baker had twenty-five years of experience with abuse cases, and had been qualified to testify as an expert in two dozen other cases. The Court found that it did not matter that her experience with abuse focused on juveniles because there is no distinction between adults and children when it comes to abusive injuries and her training would go to weight, not admissibility.

The Court further held that Dr. Baker did not comment on Duenas’ credibility or guess as to who caused her injuries. Just because her testimony corroborated Duenas’ testimony, did not mean it had to be excluded. The Court thus held that the decision to admit Dr. Baker’s testimony was not an abuse of discretion.

Classification as a Violent Crime

Ventura claimed that he should be acquitted for sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a), which was a predicate for his 18 U.S.C. § 924(c) conviction, because it is not categorically a crime of violence. The Court reviewed the district court’s decision for plain error. To prove a conviction under 18 U.S.C. § 1591(a), the government must prove that the Defendant 1) used or carried a firearm and 2) did so during or in relation to a crime of violence. A crime of violence is defined as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To determine whether it is a crime of violence the Court used the categorical approach to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence under the force clause of the § 924(c)(3)(A). Because the definition of the offense allows that it may be committed nonviolently, it does not qualify as a categorical crime of violence under the force clause. The Court also found that it did not qualify as a crime of violence under the residual clause, § 924(c)(3)(B). There was not a substantial risk that the defendant would use physical force against the victim in completing the crime, so sex trafficking could not be categorically considered a crime of violence.

The Court then held that there was clear error when the District Court instructed the jury that sex trafficking by force, fraud or coercion was categorically a violent crime. It held that the error affected Defendant’s substantial rights and the fairness of the judicial proceedings. The Court vacated Ventura’s §924(c) conviction and remanded it for judgment of acquittal.

Evidence was Sufficient

The Defendants argued that there was insufficient evidence that Fuertes knew or recklessly disregarded that Duenas was coerced or forced to engage in commercial sex acts. The Court found that when viewing the facts in the light most favorable to the government, a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court held that a reasonable jury could have found that Fuertes knew or recklessly disregarded that Duenas was forced or coerced to commit commercial sex acts because he witnessed Ventura beat her with a belt and was heavily involved in the prostitution business.

Conclusion

The Court affirmed the district court’s conviction of Fuertes because the evidence of violence was relevant to proving his involvement in sex trafficking and the expert testimony of Dr. Baker was properly admitted because she was a qualified expert. The Court also vacated Ventura’s conviction under 18 U.S.C. §924(c) because sex trafficking is not categorically a violent crime. The Court remanded that count for acquittal.

 

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6Mar

Presentence Reports Insufficient to Attribute Drug Quantities in a Conspiracy

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By Lauren D. Emery

On March 3, 2015, in the published criminal opinion, U.S. v. Flores-Alvarado, the Fourth Circuit vacated and remanded for re-sentencing the district court’s conviction against Marco Antonia Flores-Alvarado’s (“Flores-Alvarad0”).  Flores-Alvarado had previously plead guilty to a charge for conspiracy to distribute 5 kilograms or more of cocaine and 1000 kilograms or more of marijuana–for which he was sentenced to life imprisonment– and possession with intent to distribute more than 100 kilograms of marijuana–for which he was sentenced to a concurrent term of 480 months.

Quantity of Drugs Seized in Conspiracy Attributed to Flores-Alvarado

Flores-Alvarado and his co-defendant ran two drug trafficking organizations in North Carolina and used multiple sources in Mexico and the U.S. for marijuana and cocaine.  Due to his involvement in a conspiracy with his co-defendant, Flores-Alvarado was credited with trafficking 31,111.16 kilograms of marijuana which was seized from homes in Stokesdale, North Carolina and Lexington, Kentucky.

Because of the amount of drugs seized, his presentence report (“PSR”) assigned him a base level offense of 38, which after adjusting for additional factors, became an offense level of 43.  As a result of this level, and his Category II criminal history, the advisory sentencing range for both of his crimes was life imprisonment–but since the maximum sentence for the possession charge for 40 years it became 480 months.  If the drug quantities involved in the two home seizures were excluded, his offense level would drop to 41 and his sentencing range to 360 months to life.  During the lower court proceedings, the “government did not call any witnesses or present any other evidence about the drug quantities or the Stokesdale and Lexington Seizures.”

Presentence Reports are not Suffiicnet Evidence of Quantity of Drugs Trafficked by Defendant

The Fourth Circuit held that the information contained in the PSR is insufficient in and of itself to attribute the seized quantities of marijuana to Flores-Alvarado.  Instead, additional evidence must be presented to allow the court to make that factual determination.

Attributing Drug Quantities in a Conspiracy Inolves Specific Evidentiary Requirement

The Fourth Circuit reviews factual determinations of a sentencing court for clear error.  Here, it held that the dispute over the drug amounts seized in Lexington and Stokesdale “were not mere quibbles over the PSR’s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the event described in the PSR supported attributing the seized quantities to Flores-Alvarado.”  This factual issue was left unresolved by the district court.

The Fourth Circuit held that, in order to attribute the “acts of others in jointly-undertaken criminal activity” the State would need to prove the scope of Flores-Alvarado’s agreement to the conduct and the foreseeability of the conduct.  The court declared that the district court had failed to make any such findings regarding Flores-Alvarado’s agreement to jointly undertake this criminal activity and that the PSR alone is insufficient to attribute the amounts from the two seizures to him.

Sentence Vacated and Remanded for Re-Sentencing

On remand, the district court must make specific factual determinations regarding Flores-Alvarado’s “agreement to jointly undertake criminal activity and whether those drug quantities were reasonably foreseeable to Flores-Alvarado.”

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22Jan

Fourth Circuit Upholds Conviction and Mandatory Consecutive Sentencing Under 18 U.S.C. § 924(j)

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By Carson Smith

Today, in the criminal case United States v. Bran, the Fourth Circuit affirmed the Eastern District of Virginia, upholding both the conviction of Jose Armando Bran for conspiracy to commit murder and the district court’s interpretation of federal sentencing guidelines under 18 U.S.C. § 924(j).

Defendant Contends Trial Court Erred in Upholding His Conviction for Conspiracy to Commit Murder and Erred in Imposing a Mandatory Consecutive Sentence for the Conviction

Bran raised the following two issues on appeal: (1) the jury verdict was insufficient to convict on conspiracy to commit murder under § 924(j); and (2) the trial court erred in imposing a mandatory consecutive sentence for the conviction under § 924(j).

Defendant Was Convicted on Three Counts Related to the Murder of Osbin Hernandez-Gonzalez 

At trial, the government argued that Bran was the leader of Richmond Sailors Set, a violent sect of the MS-13 gang. The evidence established that in July 2011, Bran ordered two prospective members, Jeremy Soto and Luis Cabello, to kill Hernandez-Gonzalez as part of their initiation. Bran provided Soto and Cabello with a firearm to commit the murder and also ordered a current member, Michael Arevalo, to ensure that the murder was carried out.

Based on the order, Soto and Cabello carried out the murder, shooting Arevalo four times and leaving him to die by the James River. While Bran provided Soto and Cabello with a murder weapon, the firearm proved faulty. Instead, Soto and Cabello used Arevalo’s firearm to carry out the murder.

Bran was charged and convicted of three felonies for his role in the murder: (1) conspiracy to commit murder in aid of racketeering; (2) murder in aid of racketeering; and (3) use of a firearm during a crime of violence causing death to another. He was sentenced to 120 months for Count 1, mandatory life for Count 2, and life for Count 3. The trial judge ordered the life sentence for Count 3 to run consecutively with the other parts of the sentence.

The jury was given several instructions with regards to Count 3 under § 924(j). The jury was asked to fill out a three-part special interrogatory if they found Bran guilty. The interrogatory asked whether Bran aided, abetted, counseled, commanded, induced, or caused another to: (1) use a firearm during and in relation to a crime of violence; (2) carry a firearm during and in relation to a crime of violence; and/or (3) cause a firearm to be discharged during and in relation to a crime of violence. Even though the jury found him guilty of Count 3, the jury failed to find the second and third parts of the interrogatory beyond a reasonable doubt.

The Evidence at Trial Was Clearly Sufficient to Support Bran’s Conviction Under § 924(j)

Bran argued that the evidence at trial was not sufficient to support his conviction under § 924(j). While an appellate court reviews sufficiency of the evidence challenges de novo, a court need only find that there was enough substantial evidence at trial for a reasonable juror to find the defendant guilty of the charge.

In order to convict a defendant under § 924(j), the government must prove “(1) the use of a firearm to cause the death of a person and (2) the commission of a § 924(c) violation.” § 924(c) “prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime . . .” Finally, 18 U.S.C. § 2 provides that a person “is punishable as a principal” if the person (a) “aids, abets, counsels, commands, induces or procures” the commission of a criminal offense; or (b) “willfully causes an act to be done which if directly performed by him or another” would be a criminal offense.” Pursuant to 18 U.S.C. § 2, Bran was charged as the principal for both the § 924(c) and § 924(j) violations.

The Fourth Circuit held that the trial court did not err in convicting Bran under § 924(j). The evidence at trial was clearly sufficient to find that Bran aided and abetted the murder of Hernandez-Gonzalez through the use of a firearm. While Bran ostensibly claimed that the evidence did not support the conviction, the bulk of his argument focused on the juries failure to find all three of the special interrogatories. However, the Fourth Circuit emphasized that the jury found Bran guilty on the general verdict form and found that he “caused a firearm to be discharged.” The “caused” language should be interpreted broadly to encompass “use of a firearm” under 924(j). Therefore, the conviction was affirmed.

The Trial Court Did Not Err in Applying a Mandatory Consecutive Sentence for the § 924(j) Conviction

Bran argued that the trial court erred in applying a mandatory consecutive sentence for the § 924(j) conviction. Bran argued that sentencing under § 924(j) should be left up to the discretion of the judge. This issue was reviewed de novo.

According to the majority, the relation between § 924(c) and § 924(j) requires that the latter be interpreted to require mandatory consecutive sentencing. Because § 924(j) is separated out from § 924(c), Congress must have intended for § 924(j) to be given the effect of enhancing the sentence imposed by conviction under § 924(c). To interpret the statute otherwise would lead to the conclusion that a person with a § 924(c) conviction which resulted in murder could face a more lenient sentencing scheme than if the murder never occurred. The majority also emphasized that of the five circuits to have been presented with this issue, four have held that § 924(j) requires mandatory consecutive sentencing. For these reasons, the majority affirmed the trial court’s decision.

The dissent disagreed with the majority primarily on two points. First, the dissent argued that § 924(j) is discrete from § 924(c). Thus, the express statutory mandate of § 924(c) should not be applied to § 924(j). Second, Congress enacted § 924(j) so that prosecutors could “extend the death penalty to second-degree murders.” The power to impose the death penalty does not result in a more lenient sentencing scheme. For these reasons, § 924(j) should not be interpreted as requiring mandatory consecutive sentencing.

Fourth Circuit Affirmed the Conviction and Sentencing of the Trial Court

Accordingly, the Fourth Circuit upheld the trial court’s conviction of Bran under § 924(j) and the trial court’s interpretation of § 924(j) as requiring mandatory consecutive sentencing.

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11Nov

Fourth Circuit Upholds Sentencing Enhancement in Conspiracy to Possess Counterfeit and Identity Theft Case

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By Taylor Ey

Last Friday, November 7th, the Fourth Circuit issued its opinion in United States v. Mendez affirming the sentencing decision of the District Court for the Middle District of North Carolina.

Appellants Mendez, Suarez, and Rodriguez pled guilty to conspiracy to possess counterfeit access devices. Appellant Mendez also pled guilty to aggravated identity theft.  Mendez was sentenced to fifty-four months’ imprisonment, Suarez to forty-six months’ imprisonment, and Rodriguez to thirty-seven months’ imprisonment.  Appellants appealed the district court’s decision, challenging the Sentencing Guidelines calculations and the substantive reasonableness of the sentences.

The District Court Did Not Abuse its Discretion When it Applied a Sentencing Enhancement

Appellants argue that the district court erred when it applied the two-level enhancement for sophisticated means.  When a defendant employs a complex or intricate offense, the sophisticated means enhancement may apply.   Because the appellants obtained nearly 200 stolen credit card account numbers and disguised fraudulent purchases through encoding stored-value cards with stolen account numbers, their scheme was sufficiently complex.

The District Court Did Not Commit Clear Error in Calculating Its Total Loss Figure

In stolen or counterfeit credit cards and access devices cases, special rules govern the calculations of loss.  The loss includes any unauthorized charges made with the counterfeit card or unauthorized access device, up to $500.  The district court did not err because it used the $500-per-device multiplier in accordance with Sentencing Guideline § 2B1.1 cmt. n.3(F)(i), which reflected the loss from the used cards and the reasonably foreseeable loss from unused cards.

Appellants Failed to Meet Their Burden in Establishing that the District Court Committed Plain Error in Calculating the Total Number of Victims

The Fourth Circuit held that Suarez and Rodriguez failed to satisfy their burden, demonstrated that the district court committed plain error.  To establish plain error, an appellant must show (1) that the district court erred, (2) that the error was clear and obvious, and (3) that the error affected appellant’s substantial rights, affecting the outcome of the proceedings.  Even if the court assumed that appellants established that the district court erred, they did not meet their burden of establishing that the error was clear and obvious or that their rights were affected.

The District Court Did Not Err in Applying the Leadership Enhancement

The Fourth Circuit held that preponderant evidence supported the district court’s finding that Suarez and Rodriguez exercised a “degree of control” over the operation and activities of others involved in the acts. Leadership enhancement applies where a defendant has been an “organizer, leader, manager, or supervisor in any criminal activity” that involved fewer than five participants.  Even if Suarez and Rodriguez only exercised control over one other participant, this is sufficient for a leadership enhancement.

The District Court Did Not Err When it Failed to Impose Downward Variant Sentences

Because the district court did not commit any significant procedural error, the Fourth Circuit then considered whether the sentence was substantively reasonable.  There is a presumption of substantive reasonableness if the sentences are within properly calculated Guidelines ranges.  The Fourth Circuit concluded that the district court did not commit any substantive error.

The District Court’s Ruling Was Affirmed

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6Nov

Summary Judgment on Business Conspiracy and Breach of Contract Claims Affirmed

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By Evelyn Norton

Did the District Court Err in Granting Summary Judgment in Defendants’ Favor?

Today, in Rogers v. Deane, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia granting summary judgment in the Defendant’s favor.  Plaintiff-Appellant Edwina Rogers argued that the district court erred in granting summary judgment to Defendants Jon Deane and Gaffey Deane Talley, PLLC on Rogers’ claims for breach of contract and statutory business conspiracy.  Further, Rogers’ alleged that the district court should have granted her request for the opportunity to conduct discovery before granting summary judgment to Defendants.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants on Rogers’ Claim for Breach of Contract.

In reviewing the evidence in the record, the Fourth Circuit concluded that the district court properly granted summary judgment to Defendants on the claim for breach of contract.  The evidence clearly showed Rogers’ alleged damages were not caused by Defendant’s breach of contract.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants on Rogers’ Claim for Statutory Business Conspiracy.

The Fourth Circuit also concluded that the district court properly granted summary judgment in Defendants’ favor on the statutory business conspiracy claim.  To prevail on a business conspiracy claim under Va. Code Ann. §§ 18.2-499 and 18.2-500, a plaintiff must establish by clear and convincing evidence that a defendant acted with legal malice.  However, the Fourth Circuit found no evidence in the record that Defendants acted with legal malice toward Rogers’ business.  Thus, summary judgment in Defendants’ favor was proper.

  1. The District Court Did Not Err in Granting Summary Judgment to Defendants Without Granting Rogers’ Request for Discovery.

Finally, the Fourth Circuit concluded that granting summary judgment without allowing discovery was proper.  Under Rule 56(d) of the Federal Rules of Civil Procedure, summary judgment should be refused if the nonmovant has not had the opportunity to discover information essential to the nonmovant’s opposition.  However, the request should be denied if if the additional evidence to be obtained through discovery would not create a genuine dispute of material fact sufficient to defeat summary judgment.  In this case, the Fourth Circuit found no basis in the record for concluding that discovery would produce evidence creating a genuine dispute of material fact.  Accordingly, the Fourth Circuit affirmed the district court’s grant of summary judgment in Defendant’s favor without first granting Rogers’ request to conduct discovery.

Decision Affirmed

The Fourth Circuit affirmed summary judgment in favor of Defendants on both the breach of contract and statutory business conspiracy claims.

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20Oct

Health Care Fraud Conspiracy Conviction Affirmed

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By Dan Menken

Today in United States v. Garnes, the Fourth Circuit affirmed the conviction of Charlotte Elizabeth Garnes for conspiracy to commit health care fraud, obstruction of an official proceeding, and ten counts of making a false statement relating to a health care benefit program.

Defendant Raises Three Claims Challenging the Conviction and Sentence

First, Defendant claims that the district court abused its discretion by permitting the government to cross-examine her regarding an extramarital affair with her former boss.

Second, Defendant claims that the district court erred by denying her motion for a judgment of acquittal because the evidence presented was insufficient to establish that her convictions for conspiracy to commit health care fraud and for making false statements relating to a health care benefit program were “knowing and willful.”

Finally, Defendant claims that the district court improperly held her responsible for losses caused by her co-conspirator when calculating her sentencing guidelines range.

 Defendant Involved in a Conspiracy to Commit Health Care Fraud

Defendant, along with two unlicensed counselors, entered into an agreement to defraud the North Carolina Medicaid agency. Defendant submitted numerous reimbursement claims in which she falsely represented that she had provided therapeutic services. Many of the claims were facially invalid because claimed therapy sessions exceeded 24 hours in a single day. Additionally, Defendant submitted claims for services rendered in North Carolina when she was in a different state, and she claimed services were provided to patients who testified that they never received services from Defendant.

During cross-examination, the government sought to show that Defendant had been fired from her previous employment for failure to maintain proper records. Defendant responded to this line of questioning by stating that the owner’s significant other had fraudulently used Defendant’s Medicaid number. In response, the government sought to impeach Defendant’s alternative explanation by questioning Defendant regarding her extramarital affair with the owner.

 Claim One: Evidence Impeaching Witness Testimony Allowed on Cross-Examination

Reviewing for an abuse of discretion, the Fourth Circuit held that the district court correctly overruled the objection of Defendant’s counsel because Rule 404(b) does not control evidence offered for impeachment on cross-examination. The evidence in question was probative of Defendant’s character for truthfulness.

 Claim Two: Knowledge and Intent May Be Inferred From Circumstantial Evidence

Reviewing de novo, the Court noted that in order to convict Defendant of conspiracy to commit health care fraud, the government has to show that Defendant “knowingly and willfully executed” a fraudulent health care scheme. The Court further noted that the jury may infer knowledge and intent from circumstantial evidence in conspiracy cases. In this case, there was sufficient evidence regarding Defendant’s reimbursement claims to establish that Defendant had “knowingly and willingly” agreed to participate in a fraudulent health care scheme with her co-conspirators.

Furthermore, in order to convict Defendant of making a false statement relating to a health care benefit program, the government must show that Defendant knowingly and willfully made materially false or fraudulent statements in connection with the delivery of or payment for health care benefits, items, or services. Similarly, on this charge, the Fourth Circuit ruled that there was sufficient evidence from which a jury could find that the false statements made by Defendant were made knowingly and willfully.

Claim Three: Conspirator Responsible for Foreseeable Acts of Co-Conspirators

The Fourth Circuit held that the district court was entitled to include the amount of losses caused by co-conspirators in calculating the sentencing guidelines range. Defendant’s relevant conduct includes all reasonably foreseeable acts in furtherance of the jointly undertaken criminal activity.

 Conviction and Sentence Affirmed

Holding that there was no reversible error committed by the district court regarding the three claims of the Defendant, the Fourth Circuit affirmed Defendant’s conviction and sentence.

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