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United States v. Fisch

United States Court of Appeals, Fifth Circuit

March 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ABRAHAM MOSES FISCH, also known as Anthony Fisch, Defendant-Appellant

         Appeals from the United States District Court for the Southern District of Texas

          Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge.

         Abraham Moses Fisch challenges the sufficiency of evidence supporting his convictions for conspiracy, obstruction of justice, money laundering, and tax evasion; the district court's jury instructions at trial; and pre- and post-trial orders issued by the district court. For the reasons set forth below, we AFFIRM as to all issues except the district court's denial of Fisch's ineffective assistance of counsel claims, which may be raised anew in a collateral proceeding.

         I

         Fisch was a criminal defense attorney. He and former FBI informant Lloyd Williams approached defendants who had criminal charges pending against them. Fisch and Williams told the defendants to pay them large sums of money as purported legal fees. They promised to use the money to pay off high-ranking federal government officials in return for the officials' getting the defendants' cases dismissed or resolved on more favorable terms. Fisch and Williams, of course, had no such government contacts that could be paid off to influence pending legal proceedings.

         Once their scheme unraveled, Fisch and Williams were indicted for conspiracy, obstruction of justice, money laundering, tax evasion, and impeding administration of the IRS. Malkah Bertman, Fisch's wife, was indicted for conspiracy and obstruction of justice. Williams pleaded guilty but Fisch and Bertman proceeded to trial.

         The indictment included a notice of criminal forfeiture, which identified "[r]eal property located at 9202 Wickford Dr., Houston, Texas 77024"-Fisch's home-as an asset traceable to criminal proceeds. The government recorded a lis pendens (notice of pending legal action) on the home. Fisch challenged the lis pendens and sought a hearing on the basis that he needed it lifted so he could use the equity in his home to pay for counsel of choice. The district court denied a hearing due to Fisch's failure to show that he lacked sufficient alternate, available funds to pay for counsel of choice.

         The case proceeded to trial. The jury found Fisch guilty on eighteen counts (three counts had been dismissed) but not guilty on the count for impeding administration of the IRS. The jury acquitted Bertman.

         At the government's request, the district court entered a forfeiture order in the amount of $1, 150, 000. The government then moved to amend the forfeiture order to include Fisch's home as substitute property. The district court granted the motion.

         On the day of sentencing, Fisch filed a "motion to determine the effectiveness of trial counsel, " arguing that his trial counsel was ineffective in several respects. The district court orally ruled that trial counsel was not ineffective. Fisch was sentenced to 180 months in prison.

         II

         Fisch challenges the sufficiency of evidence supporting his convictions for conspiracy to obstruct justice, obstruction of justice, money laundering, and tax evasion. This court's review of a jury verdict is "highly deferential." United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). The court asks whether, "viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009).

         A. Conspiracy to Obstruct Justice, 18 U.S.C. § 371

         "To support a conspiracy conviction under [18 U.S.C.] § 371, the government must prove three elements: (1) an agreement between two or more people to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the conspirators in furtherance of the conspiracy's objective." United States v. Porter, 542 F.3d 1088, 1092 (5th Cir. 2008). "The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense." United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001).

         Fisch challenges whether the government proved that he knowingly and voluntarily entered into an agreement to obstruct justice. "Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence." United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). "An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances." United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).

         Testimony established that Fisch and Williams met with potential clients together. At such meetings, they discussed the details of their scheme. For example, Elida Sanchez testified that Fisch and Williams told her that her husband, Edilberto Portillo, would get out of jail "very soon" through "friends that work in the CIA" if she paid $1.1 million. Similarly, Princewill Njoku testified that Fisch "guaranteed" his case would be dismissed if he and co-defendant Clifford Ubani paid $150, 000. The evidence was sufficient to infer a knowing and voluntary agreement between Fisch and Williams to obstruct justice. See Casilla, 20 F.3d at 603 ("Presence and association with other members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy.").

         Fisch also questions the veracity of statements made by the government's witnesses. But the court is "bound to accept the [jury's] credibility choices that support th[e] verdict." United States v. Espinoza, 53 F.3d 1282, 1282 (5th Cir. 1995).

         Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that Fisch conspired to obstruct justice.

         B. Obstruction of Justice, 18 U.S.C. § 1503

         "The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) a judicial proceeding was pending; (2) the defendant knew of the judicial proceeding; and (3) the defendant acted corruptly with the specific intent to influence, obstruct, or impede that proceeding in its due administration of justice." United States v. Sharpe, 193 F.3d 852, 864 (5th Cir. 1999). Fisch concedes that judicial proceedings were pending and that he knew of them. His attack is twofold: first, he argues that the government did not offer sufficient evidence of specific intent to influence, obstruct, or impede the proceedings; and second, he argues that 18 U.S.C. § 1515(c) operates as an affirmative defense to the obstruction charges.

         1. Specific Intent ...


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