United States v. John Milwitt

John Milwitt (“Milwitt”) appeals his conviction of five counts of bankruptcy fraud and his sentence of twenty-four months imprisonment and three years supervised release. Milwitt challenges his conviction on several bases, including sufficiency of the evidence. Because the evidence presented was insufficient to sustain the verdict, we reverse the conviction.

I

Sometime prior to March 1997, Milwitt placed an advertisement in the yellow pages of the phone book under the headings of “Attorneys” and “Landlord Tenant Law.” The advertisement was for a company called “AP Assistance” and suggested that the company could provide both legal services through attorneys as well as assistance for individuals representing themselves. The advertisement was one of the few, if not the only, that explicitly mentioned “tenants’ rights.” Milwitt never attended law school and has never been admitted to practice law.

Based on the advertisement in the yellow pages, several tenants, including the six tenants described in the indictment, who were having problems with their landlords, contacted Milwitt. The tenants paid Milwitt varying amounts of money for his assistance with defending their unlawful…

dissenting.

Although the government’s case was less than overwhelming, the evidence was sufficient for a reasonable jury to find that Milwitt possessed the requisite fraudulent intent beyond a reasonable doubt. This is all that is required to sustain a conviction against a sufficiency of the evidence challenge.

Additionally, the majority unnecessarily reaches the issue of whether intent to defraud an identifiable victim is required, which neither party raised. It resolves the issue in a manner directly contradicted by our precedents.

I therefore respectfully dissent.

I.

As outlined by the majority, the evidence that Milwitt committed fraud is overwhelming. In order to appear effective, Milwitt filed fraudulent bankruptcy petitions on behalf of his clients without their consent, forged their signatures, and gave false accounts of their financial status. Many of these petitions misspelled the tenants’ names or gave inaccurate so-cial security numbers. A government expert testified that these inaccuracies would make it more difficult for creditors to assert their rights.

Milwitt filed the bankruptcy petitions in order to have the bankruptcy court enter “automatic stays” against…

475 F.3d 1150 UNITED STATES of America, Plaintiff-Appellee, v. John MILWITT, Defendant-Appellant. No. 05-10344. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2006. Filed February 5, 2007. Michael Shepard and James Mink, Heller Ehrman LLP, San Francisco, CA, for the defendant-appellant. Kevin V. Ryan, Barbara Valliere, and Shawna Yen, United States Attorney's Office, San Jose, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CR-04-00002-CRB. Before J. CLIFFORD WALLACE, MICHAEL DALY HAWKINS, and SIDNEY R. THOMAS, Circuit Judges. THOMAS, Circuit Judge. 1 John Milwitt ("Milwitt") appeals his conviction of five counts of bankruptcy fraud and his sentence of twenty-four months imprisonment and three years supervised release. Milwitt challenges his conviction on several bases, including sufficiency of the evidence. Because the evidence presented was insufficient to sustain the verdict, we reverse the conviction. 2 * Sometime prior to March 1997, Milwitt placed an advertisement in the yellow pages of the phone book under the…