Monday, January 11, 2016

Ex-husband attempts to extort alimony payments

US v. White:  William White had received a 30-month sentence for making threatening phone calls to a university administrator and sending letters of intimidation to several tenants that filed a fair housing complaint against him in 2010.  He had appealed his conviction and sentence, and the Fourth Circuit remanded his case for re-sentencing on May 14, 2012.  Out on supervised release, Mr. White failed to appear for re-sentencing, having absconded to Mexico.  White’s then-estranged wife, with whom he had at least an informal alimony agreement, stopped making alimony payments when she learned he was “on the lam” because she feared that she’d be charged with aiding a fugitive.  White began threatening her to get his cash.  The woman he went to Mexico with began cooperating with the FBI; Mr. White’s attempts to extort his ex-wife formed the basis for this case.   After an anonymous jury convicted him (he also had a prior history of interfering with witnesses and a juror) for felony transmission of threats through interstate commerce with the intent to extort, as well as the lesser-included offense of transmitting a threat (without the intent to extort), White received a 92-month federal sentence.

On appeal, White challenged the sufficiency of the evidence presented at trial, and disputed the procedural and substantive reasonableness of his sentence.  The Fourth Circuit affirmed.  The main focus of White’s appeal concerned the legal requirements for his convictions, specifically whether he could have intended to “extort” alimony payments to which he claims he was legally entitled.  While the instruction that the district court gave at trial was erroneous in light of the Supreme Court’s 2015 decision in Elonis v. United States (a case which considered true threats and the limits of speech on social media), the Fourth Circuit held that the error here was harmless, the jury having “soundly rejected” White’s defense that he did not send any emails to his ex-wife.  After Elonis, a conviction pursuant to § 875(c) requires that the following three elements be met: 1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; 2) that the defendant subjectively intended the communication as a threat; and 3) the content of the communication contained a “true threat” to kidnap or injure.

One district judge's two cents on the guidelines

US v. Martinovich:  In this appeal, the Fourth Circuit upheld the appellant’s convictions in connection with his investment consulting activities, but vacated the sentence imposed for the district court’s insistence on referring to the advisory federal sentencing guidelines as mandatory.  What’s more, the district court’s “ill-advised comments and interference” at trial were so “imprudent and poorly conveyed” as to narrowly miss depriving the appellant of a fair trial.  Further, the Fourth Circuit ordered that a different judge be assigned to handle sentencing upon remand.

A jury convicted Martinovich after a four-week trial, and he was sentenced him near the low end of the guidelines, 140 months, with fines & restitution totaling $1.76 million.  The government had charged Martinovich with defrauding clients of his investment firm and a subsidiary hedge fund group, alleging that he invested client funds in a solar energy company in anticipation of large returns from the company’s planned initial public offering, which the company eventually abandoned (and it subsequently filed for bankruptcy).  Earlier, Martinovich had persuaded a shareholder of the energy company to provide inflated valuations of the company’s stock, so Martinovich could collect higher fees.  His convictions included conspiracy to commit mail and wire fraud, wire fraud, mail fraud, and money laundering.

Martinovich argued on appeal that the district court improperly interfered with the trial proceedings and misstated the law during his sentencing proceedings.  While the Fourth Circuit found that the district court had, indeed, erred in interrupting trial and interfering with the defense’s presentation of its case, the error did not give rise to prejudice, in light of the “overwhelming” evidence of Martinovich’s guilt.  Moreover, Martinovich’s attorneys did not object at trial to the district court’s conduct.  The Fourth Circuit held that Martinovich had not been deprived of a fair trial.

The panel did agree, however, that Martinovich’s sentence was improperly imposed as a result of the district court’s insistence, despite objections from both the government and defense counsel, that the guidelines were mandatory.  The Fourth Circuit also determined that it would be futile to remand the case for re-sentencing before the trial court, so it remanded with instructions for a new judge to be assigned for re-sentencing.