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United States v. Milwitt

United States Court of Appeals for the Ninth Circuit

February 14, 2006, Argued and Submitted,--San Francisco, California ; February 5, 2007, Filed

No. 05-10344

Opinion

 [*1152]  THOMAS, Circuit Judge:

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.

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 [**2]  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 detainer actions. Each of the tenants testified that Milwitt represented himself as an attorney and that he seemed to know what he was talking about. Milwitt advised the tenants that they were entitled to withhold rent from their landlords. In addition, Milwitt told one of the tenants that she could use money that she withheld from her landlord to pay his fees.

Milwitt collected fees from each of the tenants. The tenants believed that Milwitt was going to represent them in unlawful detainer actions filed against them by their landlords. Although Milwitt collected fees from the tenants with the understanding [**3]  that he would represent them in court, Milwitt only filed papers on their behalf. He did not appear in court for any of the  [*1153]  unlawful detainer actions, and default judgments were entered in favor of each of the landlords.

Although Milwitt listed each of the tenants as appearing pro per on their court documents, the tenants believed that Milwitt was their attorney and taking care of their cases. Further, Milwitt listed a street address which actually corresponded to a general public mail services business where he rented a mailbox as the tenants' address on all documents he filed with the courts. Therefore, all correspondence relating to the cases was forwarded to Milwitt rather than to the tenants, slowing their discovery of Milwitt's failure to represent them.

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475 F.3d 1150 *; 2007 U.S. App. LEXIS 2479 **; Bankr. L. Rep. (CCH) P80,887; 57 Collier Bankr. Cas. 2d (MB) 883

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN MILWITT, Defendant-Appellant.

Prior History:  [**1]  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.

CORE TERMS

landlords, tenants, bankruptcy petition, defraud, fraudulently, fraudulent scheme, bankruptcy fraud, rent, intent to defraud, indictment, reasonable jury, petitions, identifiable victim, scheme to defraud, mail fraud, judgments, deceive, quotations, legal fees, advertisement, eviction, beyond a reasonable doubt, bankruptcy filing, specific intent, collected, Notice, argues, paying, mail, light most favorable

Criminal Law & Procedure, Standards of Review, Substantial Evidence, General Overview, Evidence, Weight & Sufficiency, Bankruptcy Law, Case Administration, Bankruptcy Crimes, Fraud, Bankruptcy Fraud, Elements, Acts & Mental States, Mens Rea, Specific Intent, Wire Fraud, Fraud Against the Government, Mail Fraud, Admissibility, Circumstantial & Direct Evidence, Types of Evidence, Circumstantial Evidence, Bankruptcy, Liquidations, Eligibility, Individuals With Regular Income, Eligibility