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Wednesday, February 5th, 2025

Second Circuit: 18 U.S.C. § 1546(a) Prohibits the Possession of Authentic Immigration Documents Obtained by Fraud, Not Just the Possession of Counterfeit Documents.

In United States v. Greenberg, Nos. 23-7168 and 23-7249 (2d Cir. Feb. 3, 2025) (per curiam), the Second Circuit (Walker, Robinson, Merriam, JJ.) held that 18 U.S.C. § 1546(a) (“Fraud and misuse of visa, permits and other documents”) prohibits the possession of authentic immigration documents that have been obtained by fraud, not just the possession of counterfeit documents.

Greenberg, an immigration attorney, assisted clients in pursuing asylum based on applications that she knew to contain fabricated accounts of past persecution. She was charged with conspiracy to commit immigration fraud. One of the objects of the conspiracy was obtaining I‑94 forms (i.e., forms documenting grants of asylum) “knowing them … to have been procured by means of [a] false claim or statement, or to have been otherwise procured by fraud.” § 1546(a). Following a jury trial (Nathan, SDNY), she was convicted.

On appeal, Greenberg argued that …

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Categories: fraud, immigration

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Monday, September 30th, 2024

After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Categories: double jeopardy, fraud, honest services fraud

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Tuesday, January 17th, 2023

After a Supreme Court remand, a Circuit Panel concludes that the defendants’ fraud and conversion convictions should be reversed because the confidential information misappropriated from a federal regulatory agency didn’t constitute “property” or a “thing of value” (to the agency) for purposes of wire fraud, Title 18 securities fraud, and conversion (in violation of 18 U.S.C. §§ 1343, 1348, and 641). United States v. Blaszczak, Nos. 18-2811, 18-2825, 18-2867, 18-2878, __F.4th__, 2022 WL 17926047 (2d Cir. Dec. 27, 2022) (C.J.J. Kearse and Walker; Judge Sullivan dissents).

After the Circuit’s original decision (in 2019) affirmed the fraud and conversion convictions of the four defendants (over a dissent by Judge Kearse), the Supreme Court granted cert., vacated the judgment, and “remanded for further consideration, in light of Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565 (2020).”  See United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated and remanded, 141 S. Ct. 1040 (2021).

In light of Kelly, the Department of Justice “‘determined that the confidential information at issue in [Blaszczak] does not constitute ‘property’ or a ‘thing of value’ under the relevant statutes’” — 18 U.S.C. §§ 1343, 1348, and 641 — so, the convictions on the substantive counts of fraud and conversion should be dismissed. See Blaszczak, 2022 WL 17926047 at *4 (quoting the Government’s brief on remand). However, the government argued that two conspiracy …

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Categories: fraud, insider trading

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Wednesday, November 16th, 2022

Supreme Court to Clarify the Scope of Aggravated Identity Theft

In case you missed it, the Supreme Court recently granted certiorari in Dubin v. United States, No. 22-10, which presents the question whether a person commits aggravated identity theft any time he or she mentions or otherwise recites someone else’s name while committing a predicate offense.

David Dubin was convicted of Medicaid fraud. As the case arrives at the Supreme Court, he is challenging a separate conviction under a federal law (18 U.S.C. § 1028A(a)(1)) that makes it a crime to use another person’s “means of identification” during and in relation to certain other crimes, including healthcare fraud. Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld Dubin’s conviction and sentence, and on rehearing a …

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Friday, April 16th, 2021

Second Circuit examines the elements of aggravated identity theft – was this case overcharged?

In US v. Dumitru, decided March 22, 2021, an immigration attorney was convicted after trial of asylum fraud, making false statements, and aggravated identity theft. She was sentenced to 60 months. The attorney’s alleged conduct was that she falsely filled out asylum applications on behalf of her clients and also signed and notarized those applications with her clients’ names without showing them the applications or obtaining consent.

The principal issue on appeal was whether the evidence was sufficient to prove identity theft, i.e., did the defendant use a means of identification (here a signature) without lawful authority to aid in the commission of the fraud offense. The Circuit held that the evidence was sufficient.

Signing her clients’ names without permission, and using those forged signatures to represent to the immigration authorities that her clients were requesting government action based on the false information in the applications, sufficed to prove …

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Monday, May 11th, 2020

Unanimous Supreme Court Tosses Bridgegate Conviction

Kelly v. United States concerns New Jersey’s well-known Bridgegate scandal, where officials with ties to Gov. Chris Christie decided to punish the residents of Ft. Lee because their mayor would not endorse Christie for reelection in 2013.  So, beginning on the first day of school, and under the guise of a traffic study, the defendants arranged for the three toll lanes of the George Washington Bridge usually reserved for Ft. Lee traffic to be reduced to one.  This created a traffic armageddon in Ft. Lee, jeopardizing community safety.

The defendants were fired, federally indicted, and convicted of crimes involving wire fraud and federal program fraud.  The convictions were affirmed by the Third Circuit.

On May 8, the Supreme Court unanimously reversed the convictions in an opinion by Justice Kagan.  The Court agreed that corruption and abuse of power occurred in this case, but “not every corrupt act by state or …

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Categories: fraud, wire fraud

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Monday, October 7th, 2019

Second Circuit reverses district court’s grant of a new trial in securities fraud case: United States v. Gramins, No. 18-2007-cr, __ F. 3d__, 2019 WL 4554521 (Sept. 20, 2019).

This was a government appeal from the district court’s grant of a new trial motion, under Fed.R.Crim.P. 33, on a count of conspiracy to commit security fraud,  in violation of 18 U.S.C. § 371. See 15 U.S.C. § 78j(b) (securities fraud).  The Circuit, however, reversed the district court and remanded “with instructions to reinstate the conviction and proceed to sentencing.” 2019 WL 4554521 at *1.

The case concerned the distinctive market of Residential Mortgage Backed Securities (“RMBS”). The district court granted the defendant’s Rule 33 motion on the only count on which the jury convicted (out of 9 total counts), on evidentiary grounds relying on  United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (“Litvak II”), which concerned the same RMBS market. The district court found that —  similar to what occurred in Litvak II  — a government witness misstated relevant agency law in a way …

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Categories: fraud, Rule 403, securities law

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Friday, February 16th, 2018

Second Circuit Holds that A Criminally Culpable Corporation Is Not Entitled to Restitution for Its Employees’ Criminal Conduct

The Second Circuit issued two opinions this week on third parties’ claims for restitution and shares of criminally forfeited property from defendants. See Federal Insurance Co. v. United States & United States v. Mazer (related cases), Nos. 16-2967 & 16-3402 (2d Cir. 2017) (Parker, Lynch, Carney) (appeal from Daniels, J., SDNY), opinion available here; United States v. Ohle, No. 16-601 (2d Cir. 2017) (Leval, Calabresi, Cabranes) (appeal from Rakoff, J., SDNY), opinion available here.

The lengthier of these opinions, in Federal Insurance, brings welcome news (or at least a sigh of relief) to the sort of low-level employees to whom corporate defendants are incentivized to shift blame in white collar prosecutions. Federal Insurance concerns a corporation’s entitlement to restitution and forfeiture payments from employees who were convicted for participating in a fraud for which the corporation is criminally culpable. In part, the opinion affirms …

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Categories: CVRA, forfeiture, fraud, MVRA, restitution, victims

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Thursday, December 14th, 2017

Second Circuit on the Exclusion Non-Hearsay Evidence Concerning the Advice of Counsel Defense

Yesterday, in a published opinion, the Second Circuit reversed the convictions in an off-label drug importing case because the district court erroneously excluded evidence concerning the advice of counsel defense. The opinion in United States v. Scully, No. 16-3073 (Pooler, Lynch, Cogan (by designation) (appeal from Spatt, J., EDNY) is available here. The opinion touches on hearsay issues that arise beyond the fraud context.

The defendants in Scully were charged with fraud, conspiracy, and drug importation counts resulting from a “parallel importing” scheme: that is, the defendants’ company would import foreign versions of FDA-approved drugs and sell them at a reduced rate. One of the defendants cooperated and, at trial, the other defendant (Scully) advanced an advice-of-counsel defense. The defense sought to introduce evidence of an attorney’s legal advice through Scully’s own testimony, and elicited the following exchange during its direct examination of Scully:

Q. Did Mr.

…
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Categories: evidence, fraud, hearsay, jury instructions, Uncategorized

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Wednesday, September 21st, 2016

Tax Attorney’s Conviction Affirmed

The single opinion the Circuit issued today is United States v. Daugerdas, No. 14-2437-cr  (Circuit Judges: Kearse, Walker, and Cabranes).

The defendant was a Certified Public Accountant and tax attorney. He and others designed tax shelters (for wealthy clients) in which the transactions underlying the shelters focused on the transactions tax consequences, not on their profitability. And the tax shelters “generally did not generate meaningful returns.” The defendant was convicted by a jury of seven counts related to the tax shelters (i.e., 1 count of conspiracy to defraud the IRS [§371] ; 4 counts of client tax evasion [26 U.S.C. § 7201]; 1 count of IRS obstruction [id. 7212(a)]; and 1 count of mail fraud [18 U.S.C. § 1341] ).

Interesting though, the jury acquitted Mr. Daugerdas of the 3 counts that charged him with personal tax evasion based on his use of  the tax shelters …

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Categories: fraud, hearsay, tax evasion

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Friday, June 17th, 2016

Second Circuit Updates – June 17, 2016

One major decision out of the Second Circuit today, United States v. Rowland (Docket 15-985). It’s a good read for those interested in statutory construction and interpretation. A brief overview of the facts: The defendant, John Rowland was once governor of Connecticut. After being released from federal custody following a 2004 conviction for corruption and a kickback scandal, Rowland attempted to get back in the political game by offering his consulting services to Connecticut politicians running for federal office. When the politicians, wanting his advice, but not an association with him, raised their concerns about the optics, Rowland suggested that their respective companies and non-profits hire him as a consultant. As the government alleged, though, in reality he would offer advice to their campaigns.

One politician declined his offered, going so far as to rip up the proposed contract Rowland provided that would have him work for the politician’s non-profit. …

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Categories: fraud, statutory construction, statutory interpretation

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