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. Fisch, 851 F.3d 402, 407 (5th Cir. 2017) (cleaned up).
The associated conspiracy claim requires a showing that Balagia joined an agreement between two or more people to pursue that unlawful objective and that Balagia possessed "the same degree of criminal intent as is necessary for proof of the underlying substantive offense." United States v. Fisch, 851 F.3d 402, 407 (5th Cir. 2017) (quoting United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001)).
"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. Fisch, 851 F.3d 402, 406-07 (5th Cir. 2017). Defendants cite United States v. Ogba, 526 F.3d 214 (5th Cir. 2008).
In Count 14, the Government alleged that Defendants knowingly conspired and agreed to commit violations of the Anti-Kickback Statute ("AKS"). "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. Fisch, 851 F.3d 402, 406-07 (5th Cir. 2017). The AKS criminalizes the knowing and willful solicitation or receipt of any remuneration
The defendant has the initial burden to "make an evidentiary showing of financial need." United States v. Fisch, 851 F.3d 402, 409-10 (5th Cir. 2017); see also United States v. Farmer, 274 F.3d 800, 804 (4th Cir. 2001); United States v. Jones, 160 F.3d 641, 647 (10th Cir. 1998). The Fifth Circuit has not "elaborate[d] the precise details of the circumstances and showings necessary" in this analysis," but most courts agree that the defendant "must make a prima facie, threshold showing that he needs the assets and that the government lacked probable cause to restrain the assets.
Our review of a jury's verdict is "highly deferential." United States v. Fisch, 851 F.3d 402, 406 (5th Cir. 2017). Given this deference to the jury's verdict, we conclude that Plezia has failed to demonstrate that a rational jury could not find that he joined in a conspiracy with the goal of reducing Stern's reported taxable income in violation of § 371.
Second, Lorza Ramirez has not shown clear or obvious error in connection with the challenged jury instruction, which tracked Fifth Circuit Pattern Jury Instruction (Criminal Cases) 2.63A as well as the language of § 1515(c). See United States v. Fisch, 851 F.3d 402, 410 (5th Cir. 2017).
We review the district court’s factual findings for clear error. See United States v. Fisch , 851 F.3d 402, 412 (5th Cir. 2017) (forfeiture); United States v. Read , 710 F.3d 219, 231 (5th Cir. 2012) (per curiam) (restitution). The Mandatory Victims Restitution Act requires restitution not exceeding the "actual loss directly and proximately caused by the defendant’s offense of conviction."
Bertman received $226,055.01. See United States v. Fisch, 851 F.3d 402 (5th Cir.), cert. denied sub nom. Fisch v. United States, 138 S. Ct. 378 (2017). On appeal, Bertman challenges the validity of the taxing authorities' and the bank's third-party claims.
Because none of these arguments is sufficiently briefed, each is waived. United States v. Fisch , 851 F.3d 402, 410 (5th Cir.), cert. denied , ––– U.S. ––––, 138 S.Ct. 378, 199 L.Ed.2d 277 (2017). And regardless, all are meritless.