United States Ninth Circuit

Defendants' convictions for securities fraud conspiracy are affirmed where: 1) defendants did not challenge, and overwhelming evidence supported the finding, that the conspiracy existed and that at least one member of it performed an overt act; 2) the district court erred by failing to give a "trust relationship" jury instruction, but defendants intentionally relinquished their right to challenge the jury instruction; and 3) the characterization of the sales practices as unlawful was relevant, because the government sought to prove that, as conducted by defendants (with an intent to defraud and in violation of trust relationship duties), the practices were indeed unlawful. However, defendants' sentences are vacated where the district court erred in calculating loss both for purposes of the Sentencing Guidelines and for purposes of restitution.

Appellate Information

• Argued 04/08/2010
• Decided 06/08/2010
• Published 06/08/2010

Judges

• Before: BARRY G. SILVERMAN and SUSAN P. GRABER, Circuit Judges, and FREDERICK J. SCULLIN, JR., District Judge.

Court

• United States Ninth Circuit

Counsel

• For Appellees:
  
• Dennis P. Riordan, Riordan & Horgan, San Francisco, CA; Jonathan D. Libby, Deputy Public Defender, Los Angeles, CA; Karen L. Landau, Oakland, CA; and Irene P. Ayala, Los Angeles, CA, for the defendants-appellants., Ellen R. Meltzer, Fraud Section, Criminal Division, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.