from the United States District Court for the Southern
District of Texas
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
BROWN CLEMENT, Circuit Judge.
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.
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.
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.
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
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.
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.
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.
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).
Conspiracy to Obstruct Justice, 18 U.S.C. § 371
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).
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
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.").
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).
in the light most favorable to the verdict, the evidence was
sufficient for the jury to find that Fisch conspired to
Obstruction of Justice, 18 U.S.C. § 1503
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.
Specific Intent ...