Update on Manafort Convictions Status (8/31/18)

I post today some links to Court documents from the docket entries on Pacer.  I remind readers that the Court Listener web site (here) offers cloned docket entries for cases (not sure whether it is all cases, but certainly most of the cases of importance).  Sometimes documents listed on the cloned docket entries are downloadable from the Court Listener web site.  The Court Listener docket entries for the Manafort case are here.  Sometimes it takes a day or two to update for the latest docket entries.  However, it does not appear that any of the Manafort documents are downloadable.  That seems strange to me because, the actual Pacer docket entries offers me the opportunity to obtain the documents free from Court Listener, which means that the documents are available on the Court Listener site (although not linked on the Court Listener docket entries).  In any event, since I can get the link to free documents, I offer that the links to key documents below for readers to see the documents if they wish.

Dkt Entry	Date	Description (JAT Brief Description)	Link
261	8/16/18	Jury Questions	Link
264	8/22/18	Mistrial Order	Link
280	8/21/18	Jury Verdict	Link
291	8/29/18	Gov't Motion to Extend Date re Retrial	Link
292	8/20/18	Order on Government Motion to Extend	Link

I have transcribed the jury's questions (Dkt 261) which are handwritten as follows (bullets added):

• Is one required to file an FBAR if they own less than 50% of the account, do not have signature authority but do have authority to direct disbursement of the funds?
• Can you define "shelf company" and filing requirements related to income?
• Can you please re-define "reasonable doubt?"
• Can the exhibit list be amended to include the indictment count to which they are related?

I don't have a transcription of the judge's answers.  All I have had is reporters' paraphrasings.  When and if I get the answers, I will post them and offer any comments I may have.  (If anyone has the transcription of the answers, please post them as a comment or email them; and, if anyone has the complete jury instructions, I would greatly appreciate receiving them.  My email is jack@tjtaxlaw.com.

Now on the possible retrial for the counts that were mistried because of the jury's inability to reach a unanimous verdict, I previously posted a discussion of why the sentencing for the counts of conviction could produce a sentencing range under the Sentencing Guidelines that is the same as if Manafort had been convicted of all counts submitted to the jury.  See Paul Manafort Verdict - On Relevant Conduct (8/21/18), here.  In calculating the Guidelines range the Judge is directed to consider "relevant conduct" -- similar criminal conduct other than the counts of conviction if the Government proves the conduct by a preponderance of the evidence.  Certainly, the mistried FBAR counts (Counts 11-14) are relevant conduct to the FBAR conviction (Count 11) and to the tax convictions (Counts 1-5). Likewise the mistried Bank Fraud and Conspiracy Counts (Counts 28-32) are relevant conduct to the convicted bank fraud count (Count 27).  So, assuming that the Government proves that unconvicted conduct by a preponderance of the evidence, the Guidelines calculations will be just as if Manafort were convicted on all counts.

In this regard, the judge's action on the anticipated defense motions for acquittal will signal whether the Government needs to retry the mistried counts.  The judge in theory might acquit on those mistried counts, thus mooting the issue.  But, one can infer from the fact that the judge allowed the counts to go to the jury that the judge believed that reasonable jurors could have decided either way.  That may not be a preponderance of the evidence on the mistried counts, but is probably some signal that the judge may be in a position to consider those counts as relevant conduct in the Sentencing Guidelines' calculations.  And, in all likelihood, the judge having already heard the evidence at trial can substantially truncate the need to hear evidence in the sentencing phase.

I was reading a recent case that, while not directly in point echoed some of these concepts.  In United States v. Hoffman, ___ F.3d ___, 2018 U.S. App. LEXIS 24036 (5th Cir. 2018), here, the defendants were convicted of various counts related to a scheme described by the Court in opening as follows:

State tax credits for the film industry spurred much of this growth. Id. ("[M]ake no mistake: The state's tax-credit program . . . is largely responsible for the surge in local productions."). They also provided an incentive for fraud. A jury found that to be the case for Peter Hoffman, Michael Arata, and Susan Hoffman. It credited the government's allegations that they submitted fraudulent claims for tax credits, mostly by (1) submitting false invoices for construction work and film equipment or (2) using "circular transactions" that made transfers of money between bank accounts look like expenditures related to movie production. Their principal challenge to those convictions is an argument that the tax credits are not property within the meaning of the mail and wire fraud statutes but are instead akin to the video poker licenses the Supreme Court rejected as a basis for federal prosecution in Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365, 148 L. Ed. 2d 221 (2000). If we conclude that the credits are property subject to the federal fraud statutes, defendants also contend that the evidence was insufficient to convict because they made a good-faith effort to comply with a state program riddled with gray areas.

The defendants were charged with conspiracy, multiple counts of wire fraud, mail fraud and making a false statement.  The judge then acquitted on certain counts of wire fraud.  The defendants appealed their convictions, and the Government appealed the acquitted counts.  The Court accepted the Governments argument but in process noted (Slip Op. p. 22):

    fn 9 We perform our duty and review all of the acquitted counts the government appeals. We note, however, that a successful appeal will have no practical effect for most of the counts. This is especially true when it comes to Peter. Because his Guidelines range already captured the full amount of intended loss in this scheme and any other conceivable enhancements, reinstating some convictions would not change Peter's range. So what is the point of trying to convict him of 21 counts? Doing so is inconsistent with DOJ policy. The U.S. Attorneys' Manual counsels that to "promote the fair administration of justice, as well as the perception of justice" prosecutors should charge "as few separate counts as are reasonably necessary"—it sets a default ceiling of 15—so long as that does not jeopardize a successful prosecution or prevent the court from fully capturing a defendant's sentencing exposure. U.S. Dep't of Justice, United States Attorneys' Manual: Criminal Resource Manual § 215 (1997). A single count of wire fraud encompasses Peter's Guideline range in allowing a sentence up to 20 years in prison. 18 U.S.C. § 1343.

The Court does not use the relevant conduct concept but instead used the the intended loss concept that would sweep in all the intended fraud loss.  Both, in this context are related concepts.

The Court also noted with respect to the temptation to "lard up" indictments with many counts (Slip Op. p. 31:

   fn12 This principle means not much is needed to multiply wire fraud counts once the government has proven the scheme to defraud with its requisite intent. With today's rampant use of email and other technology that often crosses state lines, it will usually not be hard to identify scores of wires that further a scheme. Then again, adding all these counts packs little additional punishment punch—one count of wire fraud already allows a sentence up to 20 years—so there will rarely be a reason to go overboard. See supra note 9.

So, bottom line, if the Government proves the relevant conduct or the scope of the intended loss to include the mistried counts, the Guidelines should easily product a sentencing range that will be within the maximum allowed by the counts of conviction.  The Court can and likely will then make some Booker variance, particularly if Manafort sees the light before sentencing and starts cooperating.

Further, of course, the Government could "lard up" the sentencing calculations with other unconvicted conduct that was not even charged -- such as relevant conduct outside the statute of limitations, etc.  In short, provided that the counts of conviction stand, the Government should be able to get its pound of flesh with the respect to crimes related to this indictment.