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Houston vs. Schomig, No. 10-15048 (3-8-11) (Trott with O'Scannlain and Tena Campbell, Sr. D.J., D. Utah).

Petitioner's lawyer, in an attempt to commit murder trial, was a member of the same public defender's office that had represented a key witness in this case previously in another case. The lawyer himself had nothing to do with the previous representation. The district court, on remand from the 9th, considered whether there was an adverse impact and found that there was not. The 9th affirmed. The lawyer stated that he had not altered his representation of the petitioner; that he impeached with his prior; that the lawyer presented a reason for the witness to have wanted to get even with petitioner, that failure to impeach on parole status was due to a trial court ruling or oversight, and that a failed polygraph test was also precluded by the court. The witness moreover waived attorney-client privilege. These factors support the district court's findings, which the 9th upholds. Still, it is unsettling that the loyalty owed to a former client is brushed aside even with these facts.

U.S. v. Eriksen, No. 10-30056 (3-9-11) (M. Smith with Graber and Benitez, DJ., S.D. Ca). The defendants were convicted of stealing from Peter to pay Paul, with Peter being the company's ERISA 401(k) employee contributions, and Paul being the company. It was with a goal to save a sinking business (maritime electronics) and the defense was intent. The defendants were convicted of two counts of 18 U.S.C. 664, embezzlement of an employee benefit fund, and one count of false statement in an ERISA plan document. On appeal, the defendant argued that the pension plan was not an ERISA plan because it was never amended to become an ERISA plan. The 9th explains that the government proved that the plan was, in fact, amended to be ERISA and to require employer matching funds. The defendants' employers also argued intent, that in fact they intended to repay. The 9th points out that they never did and so violated all sorts of fiduciary duties. Third, the defendants argued that the failure of the defendants to make contributions was a civil matter, tied up with the ERISA plan and the timing requirements. The 9th quickly cuts to the matter, stating that the actions of the defendant amounted to theft and embezzlement. The defendant never made payments once the business started sinking. The 9th reviews the cases where civil regulations were erroneously bootstrapped to criminal charges; and the 9th easily distinguishes those cases from this one. The false statement was telling the employees that they had employer contributions when they did not. All in all, the defendants criminally violated their fiduciary duties.

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