United States v. Abraham Fisch
2017 U.S. App. LEXIS 4499
| 5th Cir. | 2017Background
- Abraham Fisch, a criminal-defense attorney, and former FBI informant Lloyd Williams solicited large "legal fee" payments from defendants, promising to pay high‑ranking officials to get their cases dismissed—contacts that did not exist.
- Williams pleaded guilty; Fisch and his wife Malkah Bertman were indicted; Bertman was acquitted and Fisch convicted on 18 counts (including conspiracy, obstruction, money laundering, and tax evasion).
- The indictment listed Fisch’s Houston home via a forfeiture notice and the government recorded a lis pendens; Fisch sought a hearing to lift it to access equity for counsel of choice, but the district court denied a hearing after Fisch failed to submit adequate evidence of financial need.
- Post‑trial the district court entered a $1,150,000 forfeiture money judgment and later authorized forfeiture of Fisch’s home as substitute property; Fisch’s challenges to those orders were largely unpreserved.
- On the morning of sentencing Fisch moved claiming ineffective assistance of trial counsel; the district court denied the motion orally without an evidentiary hearing. The Fifth Circuit affirmed convictions but allowed ineffective‑assistance claims to be raised in a § 2255 proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy to obstruct justice | Fisch: evidence insufficient to show he knowingly agreed to obstruct justice | Govt: circumstantial evidence (meetings, promises to clients) supports inference of agreement and knowledge | Affirmed — evidence sufficient under deferential review |
| Sufficiency of evidence for obstruction of justice (intent) | Fisch: no specific corrupt intent to influence proceedings | Govt: false promises induced defendants to reject pleas/prepare inadequately, showing probable effect of interfering with justice | Affirmed — sufficient evidence of specific intent |
| Applicability of 18 U.S.C. § 1515(c) defense | Fisch: §1515(c) protects lawful legal representation and govt failed to disprove it | Govt: contention waived below; appellate court will not consider new argument | Not reached on merits — claim waived for failure to raise in district court |
| Lis pendens hearing / due process re: access to counsel | Fisch: denial of hearing on lis pendens violated Fifth and Sixth Amendment rights because he needed home equity to retain counsel | Govt/District Ct: Fisch failed to provide documentary proof of financial inability despite multiple chances | Affirmed — no due process violation because Fisch declined to submit required evidence |
| Jury instructions (deliberate ignorance & §1515(c) instruction) | Fisch: court should have instructed jury on §1515(c) and not given deliberate ignorance instruction | Govt: §1515(c) instruction waived; deliberate ignorance supported by testimony that Fisch purposely avoided inquiry | Affirmed — §1515(c) claim reviewed for plain error and fails; deliberate ignorance instruction proper |
| Forfeiture procedure and substitute‑property forfeiture | Fisch: Rule 32.2 errors and improper substitution/traceability; inclusion of $450,000 in money judgment unsupported by jury | Govt: many objections not preserved; district court made factual findings based on testimony | Affirmed — procedural errors not shown prejudicial; factual forfeiture findings not clearly erroneous |
| Ineffective assistance of counsel | Fisch: trial counsel failed to investigate, call witnesses, present defenses, seek continuance, and request §1515(c) instruction | Govt: factual disputes not developed below; best resolved in collateral review | District court’s summary denial vacated for purposes of appeal — Fifth Circuit permits §2255 collateral challenge (no ruling on merits) |
Key Cases Cited
- United States v. McNealy, 625 F.3d 858 (5th Cir.) (standard for reviewing sufficiency of the evidence)
- United States v. Casilla, 20 F.3d 600 (5th Cir.) (conspiracy may be inferred from circumstantial evidence)
- United States v. Aguilar, 515 U.S. 593 (1995) (obstruction may be shown by endeavors having natural and probable effect of interfering with justice)
- United States v. Melrose E. Subdivision, 357 F.3d 493 (5th Cir.) (due process requires hearing when restrained assets are needed to pay counsel)
- United States v. Jones, 160 F.3d 641 (10th Cir.) (defendant must show lack of other assets to trigger lis pendens hearing)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective assistance claims are properly raised in §2255 collateral proceedings)
- Puckett v. United States, 556 U.S. 129 (2009) (contemporaneous‑objection rule and plain‑error review)
- United States v. Freeman, 434 F.3d 369 (5th Cir.) (standards for deliberate ignorance jury instruction)
- United States v. Moree, 897 F.2d 1329 (5th Cir.) (bribery/offers to fix trial are paradigmatic obstruction of justice)