August 20, 2018

Tenth Circuit: Silence Regarding Right Against Self-Incrimination Is Waiver of that Right

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fishman on Friday, May 27, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was found guilty of conspiracy to commit mail and wire fraud and conspiracy to commit money laundering; he was sentenced to 262 months’ imprisonment, three years of supervised release, and $3,684,213 in restitution. Petitioner challenges his conviction and sentence on numerous grounds, including that the district court erred in denying his motion to dismiss the indictment as being “the fruit of effectively immunized statements” and that there was a fatal variance from the indictment because the indictment alleged one conspiracy but the evidence at trial established multiple conspiracies.

The Court disagreed with Petitioner’s contentions. Petitioner did not invoke his Fifth Amendment privilege to refuse to testify before the grand jury. No one with the authority to grant him use immunity did so and, while he claims he thought asserting his Fifth Amendment right against self-incrimination was merely a formality, “the reality is that his silence regarding that right indicates he waived it and testified without the benefit of an immunity agreement.” Additionally, the Court found that “[i]n reviewing a jury finding that a single, rather than multiple, conspiracy existed, ‘a focal point of the analysis is whether the alleged coconspirators’ conduct exhibited interdependence.'” Such interdependence was present in this case, and the record supports the jury’s determination that there was only a single conspiracy.

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