518 F. App'x 375
6th Cir.2013Background
- McKuhn swindled 194 individuals and 22 churches out of money via upfront fees for debt-relief schemes using false promises and elaborate-sounding jargon.
- Victims included church congregations; losses exceeded $3.1 million with some losing homes or facing foreclosure.
- McKuhn was convicted after a trial in which he represented himself; convictions include two counts of mail fraud, four counts of wire fraud, and one count of money laundering.
- District court sentenced him to 210 months in prison and restitution of about $2.5 million.
- The defense challenged sufficiency of the evidence, a closing-argument remark, and aspects of the sentence including restitution and deterrence considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove intent to defraud | Government argues overwhelming evidence supports intent to defraud | McKuhn contends insufficient proof of fraudulent intent | Sufficient evidence supports guilt; no reversal on sufficiency |
| Effect of closing argument about non-evidentiary contracts | Government supported proper trial conduct by limiting contract references | McKuhn claims the court's instruction impaired fair trial rights | No reversible error; district court properly limited argument and clarified that this was not a contract case |
| Reasonableness and calculation of restitution and loss | Restitution figure reasonably reflects losses and victim statements support it | Challenge to specific loss figures and indigence considerations | Loss calculation and restitution supported; no clear error; §3663 factors properly applied |
| Use of deterrence and other §3553(a) factors in sentencing | Deterrence is a proper §3553(a) factor affecting sentence | Deterrence discussion improperly influenced sentencing | Deterrence addressed within §3553(a) framework; no reversible error |
Key Cases Cited
- United States v. Price, 134 F.3d 340 (6th Cir. 1998) (forfeiture and sufficiency considerations; prompt motions omitted could be deemed waived)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of evidence)
- United States v. Winkle, 477 F.3d 407 (6th Cir. 2007) (circumstantial evidence may establish intent to defraud)
- United States v. Charles, 138 F.3d 257 (6th Cir. 1998) (rejected earlier potential acquittal analyses; standard of review for sufficiency)
- United States v. Sheffey, 57 F.3d 1419 (6th Cir. 1995) (trial court properly curtailed improper contract-based evidence issue)
- United States v. Erpenbeck, 532 F.3d 423 (6th Cir. 2008) (requires reasonable estimate for loss calculations; no clear error standard)
- United States v. Guardino, 972 F.2d 682 (6th Cir. 1992) (restitution considerations under §3663; ability to pay as factor)
- United States v. Sanders, 95 F.3d 449 (6th Cir. 1996) (indigency is one factor in restitution assessment; future earning potential considered)
- United States v. Bondurant, 39 F.3d 665 (6th Cir. 1994) (restitution and defendant's financial resources considerations)