Latest 2 Cases: Kirkpatrick v. Chappell (Criminal Law), United States v. Gagarin (Criminal Law)

The Investors’ Control of Their Investment Advisers. Who Has the Final Word?

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions.

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Kirkpatrick v. Chappell

Docket: 14-99001

Opinion Date: February 13, 2020

Judge: Carlos T. Bea

Areas of Law: Criminal Law

The Ninth Circuit panel filed an order amending its June 13, 2019 opinion affirming the district court's denial of William Kirkpatrick's habeas corpus petition challenging his death sentence for two counts of first-degree murder and denying Kirkpatrick's petition for rehearing, writing that, in light of the aggravating evidence, the jury still would have found that the death sentence was warranted. Specifically, the panel amended the petition to write that, in light of the substantial aggravating evidence presented in comparison to the minimal mitigation evidence, "absent improperly-considered facts," the jury still would have found that the "bad evidence" was so substantial in comparison with the "good" evidence that a sentence of death was warranted instead of life without parole. With these amendments, the Fourth Circuit denied Appellant's petition for panel rehearing.

United States v. Gagarin

Docket: 18-10026

Opinion Date: February 13, 2020

Judge: Ronald Murray Gould

Areas of Law: Criminal Law

The Ninth Circuit affirmed Defendant's conviction for aggravated identity theft, a three-level sentence enhancement, and the restitution order in this case, holding that sufficient evidence supported each element of the offense and that the district court did not otherwise abuse its discretion in the proceedings below. Defendant's convictions arose from her participation in a scheme to defraud a life insurance company by submitting fraudulent insurance applications. The Ninth Circuit affirmed the convictions and sentence, holding (1) there was sufficient evidence to support the convictions; (2) the district court did not commit significant procedural error by imposing a three-level "manager or supervisor" enhancement under U.S.S.G. 3B1.1(b); and (3) there was no error in the district court's restitution order.