United States v. Kenny Kirby
692 F. App'x 334
| 9th Cir. | 2017Background
- Four defendants (Kirby, Rachel, Cutulle, Brewer) convicted by jury of conspiracy, wire fraud, and money laundering; they appealed the convictions.
- Prosecution evidence included large escrow receipts and rapid withdrawals: Kirby received and quickly withdrew $6.1 million; Rachel received and disbursed $1.8 million and communicated reassuringly with a depositor.
- Superseding indictment alleged money laundering with “specified unlawful activity” defined generically as wire fraud rather than tethering particular substantive wire-fraud counts.
- At trial the court admitted summary charts of the conspiracy’s scope, impeached Brewer with an old fraud conviction, and the judge actively questioned witnesses; a prospective juror made a biased remark during voir dire.
- Defendants raised multiple claims: insufficiency of the evidence, duplicity/Double Jeopardy, voir dire error, improper impeachment, inadmissible summaries, judicial partiality, erroneous Pinkerton and money-laundering instructions, and erroneous denial of severance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy and laundering | Prosecution: circumstantial evidence (escrow receipts/withdrawals, letters, role as attorney) showed knowing participation | Defendants: challenged legal sufficiency | Affirmed — evidence sufficient as viewed for prosecution; Kirby and Rachel linked by conduct and communications |
| Tethering money-laundering counts to specific wire-fraud acts; duplicity/Double Jeopardy | Prosecution: indictment generically defines specified unlawful activity as wire fraud | Defendants: argued laundering counts improperly tied/duplicitous and raised Double Jeopardy concerns | Rejected — laundering counts not tied to particular charged wire-fraud counts; no Double Jeopardy or duplicity error |
| Voir dire and juror bias | Prosecution: voir dire adequate; biased remark was isolated | Defendants: alleged panel taint and sought individual voir dire/limiting instruction | No abuse — single unrelated remark did not taint jury; court acted within broad discretion |
| Impeachment with >10-year-old conviction (Rule 609(b)) | Prosecution: impeachment permissible given probative value and importance of credibility | Brewer: Rule 609(b) barred impeachment | No abuse — court weighed factors (importance, probative value, notice) and allowed impeachment |
| Admissibility of summary charts (FRE 1006) | Prosecution: charts summarized voluminous records and showed full conspiracy scope | Defendants: argued inclusion of uncharged acts and Confrontation issues | No abuse — charts admissible; full-scope conspiracy evidence permissible; no Confrontation violation |
| District judge questioning witnesses | Prosecution: questions clarified complex finances and trial management | Defendants: judge’s questions showed partiality/advocacy | No plain error — questions aimed to clarify; judge gave curative instructions |
| Pinkerton instruction and unanimity on underlying acts | Prosecution: Model Instr. 8.25 correctly states Pinkerton law | Defendants: instruction failed to require unanimous finding of which co-conspirator committed underlying acts | No plain error — instruction tracks Pinkerton law; unanimity on specific underlying act unnecessary here |
| Denial of severance (Rachel) | Prosecution: joint trial proper; full conspiracy evidence admissible against each defendant | Rachel: severance needed due to prejudice from co-defendants’ conduct | No abuse — preference for joint trials; no manifest prejudice; limiting instruction given |
Key Cases Cited
- United States v. Rogers, 321 F.3d 1226 (9th Cir.) (evidence of uncharged acts admissible in conspiracy context)
- United States v. Grasso, 724 F.3d 1077 (9th Cir.) (circumstantial evidence can establish knowing connection to conspiracy)
- United States v. Rizk, 660 F.3d 1125 (9th Cir.) (government may prove full scope of conspiracy beyond overt acts in indictment)
- United States v. Hursh, 217 F.3d 761 (9th Cir.) (factors for admitting >10-year-old convictions under Rule 609)
- United States v. Castro, 887 F.2d 988 (9th Cir.) (when indictment alleges multiple offenses conjunctively, conviction may rest on any alleged conspiratorial act)
- Pinkerton v. United States, 328 U.S. 640 (U.S. 1946) (co-conspirator liability for reasonably foreseeable offenses in furtherance of conspiracy)