/f3d/923/0390-01

United States Court of Appeals for the Fifth Circuit · 2019-04-26

Original case on neochart.com

Case and law context

18 U.S.C. § 1343

Role: applied; posture: criminal; second jury trial of a public company's CEO for a channel-stuffing scheme; convicted of wire fraud, securities fraud, false statements to the SEC and conspiracy; appeal on evidentiary rulings and jury instructions (no sufficiency challenge); opinion substituted on denial of rehearing; affirmed; result: claimant-won; claim:

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Wire transmission for execution of schemenot_reached
Excluded from merits counts
applied / merits

Unspecified variantNo source quotation recorded for this block.
/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Knowing participation with intent to defraudnot_reached
Excluded from merits counts
rule-announced / merits

theory: jury instruction: a representation is false if made with reckless indifference to its truth; subject: theory=jury instruction: a representation is false if made with reckless indifference to its truth

Unpreserved objection that the instruction conflicts with specific intent to defraud; rejected in two sentences on plain-error review.
reckless-indifference/instruction-approved-on-plain-error-review
The district court instructed the jury that a representation is false if it "is made with reckless indifference as to its truth or falsity" and that "[r]eckless indifference means the omission or misrepresentation was so obvious that the defendant must have been aware of it."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [50909:51185] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

The "reckless indifference" instruction was not erroneous.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [41220:41278] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Knowing participation with intent to defraudnot_reached
Excluded from merits counts
background / merits

theory: Pinkerton co-conspirator liability for the substantive wire fraud counts (in place of deciding the Rosemond aiding-and-abetting instruction issue); subject: theory=Pinkerton co-conspirator liability for the substantive wire fraud counts (in place of deciding the Rosemond aiding-and-abetting instruction issue)

NOT a finding of Baker's personal intent to defraud. The wire-fraud convictions were upheld on Pinkerton co-conspirator liability: the jury was given a Pinkerton instruction and convicted him of the conspiracy, and the fraudulent acts were reasonably foreseeable to him and done in furtherance of the conspiracy. On that ground the court expressly did not decide the challenge to the aiding-and-abetting instruction (Rosemond "advance knowledge"). The law file declares no id for Pinkerton or accomplice liability, so the passage is kept here only as background (not-reached, no basis); the polarity tags on the fact lines are relative to his involvement in the scheme, which is what the court weighed.
vicarious-liability/executive-directed-scheme-and-approved-cover-statements
The evidence at trial showed that Baker instructed others to participate in the channel-stuffing scheme and approved the statements covering it up.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [38909:39056] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Gluk testified that he "conspired with Mike Baker, John Raffle, David Applegate and others to misrepresent the accounts of ArthroCare Corporation, to engage in channel stuffing and hide the nature of the relationship between DiscoCare and ArthroCare, and as a result of all that, [ ] filed incorrect statements with the Securities and Exchange Commission."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [41884:42240] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Baker's counsel attempted to show that although Baker was generally aware of the nature of DiscoCare's business, he did not have specific knowledge about the fraudulent details, or he learned about them too late.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [8373:8585] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

"A substantive conviction cannot be upheld solely under Pinkerton unless the jury was given a Pinkerton instruction."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [38599:38716] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

The substantial evidence of Baker's involvement establishes that the fraudulent acts were reasonably foreseeable by him and done in furtherance of the conspiracy.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [39057:39219] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Interstate or foreign transmissionnot_reached
Excluded from merits counts
applied / merits

Only glimpse: a footnote quoting the case agent that the Count 5 email between two people in Texas was routed through company servers in California; not an issue on appeal.
Unspecified variantNo source quotation recorded for this block.
/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Material deceptionnot_reached
Excluded from merits counts
applied / merits

Unspecified variantNo source quotation recorded for this block.
/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Traditional money or property as an objectnot_reached
Excluded from merits counts
rule-announced / merits

theory: jury instruction: scheme "intended to deprive another of money or property, or bring about some financial gain to the person engaged in the scheme"; subject: theory=jury instruction: scheme "intended to deprive another of money or property, or bring about some financial gain to the person engaged in the scheme"

De novo review of an instruction and of the indictment, not of sufficiency. Investors bought or held stock on the market; the CEO's gain came through bonuses and stock options, not from the investors' hands. The court rejects a requirement that the victim's loss be the defendant's gain. The two fact lines are the court's supporting remark about the trial evidence, not a sufficiency holding.
deprivation-of-victim/no-need-to-obtain-property-directly-from-victim
The evidence at trial showed that Baker did just that: (1) He made false statements to investors and potential investors to induce them to hold onto or buy ArthroCare stock; (2) he knew the statements did not accurately reflect ArthroCare's business model or revenue projections; and (3) the scheme was intended to benefit Baker via bonuses and appreciation of his own stock options.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [35842:36225] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

By inducing investments in ArthroCare, the scheme affected the victims' property rights by wrongfully leaving them "without money that they otherwise would have possessed."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [36226:36398] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Section 1343 does not require an intent to obtain property directly from a victim.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [32736:32818] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Skilling did not impose a "mirror image" requirement for wire fraud.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [30436:30504] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The jury instructions here allowed for a conviction if Baker intended to deceive the victims out of their money for his own financial benefit.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [35699:35841] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The jury instructions were not erroneous.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [36399:36440] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Traditional money or property as an objectsatisfied
Excluded from merits counts
applied / lower-court

basis: proved; theory: district court's denial of the post-verdict motion for judgment of acquittal; subject: theory=district court's denial of the post-verdict motion for judgment of acquittal

The district court's sufficiency ruling, reported with evident approval but reviewed on appeal only as an instruction question.
deprivation-of-victim/investors-induced-to-buy-or-hold-stock-by-false-company-statements
The court explained that "substantial evidence was presented to show the misleading and fraudulent statements made by Baker induced investment in ArthroCare," and that "a rational trier of fact could have found the goal of the scheme ... was to deprive investors of money they otherwise would have possessed."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [29159:29468] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The district court denied the motion, concluding that "the focus" of a scheme to defraud is on "depriving the victim of property for some benefit" and that there is "no requirement that a defendant must directly gain or possess [the victim's] property."
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [28905:29158] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Scheme or artifice to defraudsatisfied
Excluded from merits counts
applied / lower-court

basis: conceded

Existence of the fraud was conceded at trial and is not an appellate issue; only the defendant's knowledge of it was disputed.
investor-deception/channel-stuffing-to-inflate-reported-revenue
Baker, along with the company's other senior executives, engaged in a "channel-stuffing" scheme that involved sending excess products to a distributor that did not need those products.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [325:509] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

ArthroCare reported those shipments as legitimate sales, which inflated the company's revenue numbers in its financial reports.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [510:637] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

At trial, Baker's counsel conceded that a fraud had occurred at ArthroCare, but the defense was that Gluk, Raffle, and Applegate had orchestrated it without Baker's knowledge.
Source: docroot/ir/caselaw/f3d_923.jsonl#/f3d/923/0390-01; Unicode character offsets [8197:8372] (end exclusive); SHA-256 56c8a4a8edbb926a6e88073c3ca4cd1e36966785d95d343de83140e602ffb5f5.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/923/0390-01 — United States Court of Appeals for the Fifth Circuit · 2019Transmission or causation by wire, radio, televisionnot_reached
Excluded from merits counts
applied / merits

Unspecified variantNo source quotation recorded for this block.

Court interpretations recorded from this case