IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20663

consolidated with 15-20636

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

ABRAHAM MOSES FISCH, also known as Anthony Fisch, 

 Defendant - Appellant 

Appeals from the United States District Court 

for the Southern District of Texas 

Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges. 

EDITH BROWN CLEMENT, Circuit Judge. 

Abraham Moses Fisch challenges the sufficiency of evidence supporting 

his convictions for conspiracy, obstruction of justice, money laundering, and 

tax evasion; the district court’s jury instructions at trial; and pre- and posttrial orders issued by the district court. For the reasons set forth below, we 

AFFIRM as to all issues except the district court’s denial of Fisch’s ineffective 

assistance of counsel claims, which may be raised anew in a collateral 

proceeding. 

 

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2017

Lyle W. Cayce

Clerk

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I 

Fisch was a criminal defense attorney. He and former FBI informant 

Lloyd Williams approached defendants who had criminal charges pending 

against them. Fisch and Williams told the defendants to pay them large sums 

of money as purported legal fees. They promised to use the money to pay off 

high-ranking federal government officials in return for the officials’ getting the 

defendants’ cases dismissed or resolved on more favorable terms. Fisch and 

Williams, of course, had no such government contacts that could be paid off to 

influence pending legal proceedings. 

Once their scheme unraveled, Fisch and Williams were indicted for 

conspiracy, obstruction of justice, money laundering, tax evasion, and 

impeding administration of the IRS. Malkah Bertman, Fisch’s wife, was 

indicted for conspiracy and obstruction of justice. Williams pleaded guilty but 

Fisch and Bertman proceeded to trial. 

The indictment included a notice of criminal forfeiture, which identified 

“[r]eal property located at 9202 Wickford Dr., Houston, Texas 77024”—Fisch’s 

home—as an asset traceable to criminal proceeds. The government recorded a 

lis pendens (notice of pending legal action) on the home. Fisch challenged the 

lis pendens and sought a hearing on the basis that he needed it lifted so he 

could use the equity in his home to pay for counsel of choice. The district court 

denied a hearing due to Fisch’s failure to show that he lacked sufficient 

alternate, available funds to pay for counsel of choice. 

The case proceeded to trial. The jury found Fisch guilty on eighteen 

counts (three counts had been dismissed) but not guilty on the count for 

impeding administration of the IRS. The jury acquitted Bertman. 

At the government’s request, the district court entered a forfeiture order 

in the amount of $1,150,000. The government then moved to amend the 

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forfeiture order to include Fisch’s home as substitute property. The district 

court granted the motion. 

On the day of sentencing, Fisch filed a “motion to determine the 

effectiveness of trial counsel,” arguing that his trial counsel was ineffective in 

several respects. The district court orally ruled that trial counsel was not 

ineffective. Fisch was sentenced to 180 months in prison. 

II 

Fisch challenges the sufficiency of evidence supporting his convictions

for conspiracy to obstruct justice, obstruction of justice, money laundering, and 

tax evasion. This court’s review of a jury verdict is “highly deferential.” United 

States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). The court asks whether, 

“viewing the evidence and the inferences that may be drawn from it in the light 

most favorable to the verdict, a rational jury could have found the essential 

elements of the offenses beyond a reasonable doubt.” United States v. Clark, 

577 F.3d 273, 284 (5th Cir. 2009).

A. Conspiracy to Obstruct Justice, 18 U.S.C. § 371 

“To support a conspiracy conviction under [18 U.S.C.] § 371, the 

government must prove three elements: (1) an agreement between two or more 

people to pursue an unlawful objective; (2) the defendant’s knowledge of the 

unlawful objective and voluntary agreement to join the conspiracy; and (3) an 

overt act by one or more of the conspirators in furtherance of the conspiracy’s 

objective.” United States v. Porter, 542 F.3d 1088, 1092 (5th Cir. 2008). “The 

government must prove the same degree of criminal intent as is necessary for 

proof of the underlying substantive offense.” United States v. Peterson, 244 

F.3d 385, 389 (5th Cir. 2001). 

Fisch challenges whether the government proved that he knowingly and 

voluntarily entered into an agreement to obstruct justice. “Direct evidence of a 

conspiracy is unnecessary; each element may be inferred from circumstantial 

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evidence.” United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). “An 

agreement may be inferred from concert of action, voluntary participation may 

be inferred from a collection of circumstances, and knowledge may be inferred 

from surrounding circumstances.” United States v. Stephens, 571 F.3d 401, 404 

(5th Cir. 2009). 

Testimony established that Fisch and Williams met with potential 

clients together. At such meetings, they discussed the details of their scheme. 

For example, Elida Sanchez testified that Fisch and Williams told her that her 

husband, Edilberto Portillo, would get out of jail “very soon” through “friends 

that work in the CIA” if she paid $1.1 million. Similarly, Princewill Njoku 

testified that Fisch “guaranteed” his case would be dismissed if he and codefendant Clifford Ubani paid $150,000. The evidence was sufficient to infer a 

knowing and voluntary agreement between Fisch and Williams to obstruct 

justice. See Casilla, 20 F.3d at 603 (“Presence and association with other 

members of a conspiracy, along with other evidence, may be relied upon to find 

a conspiracy.”). 

Fisch also questions the veracity of statements made by the 

government’s witnesses. But the court is “bound to accept the [jury’s] 

credibility choices that support th[e] verdict.” United States v. Espinoza, 53 

F.3d 1282, 1282 (5th Cir. 1995). 

Viewed in the light most favorable to the verdict, the evidence was 

sufficient for the jury to find that Fisch conspired to obstruct justice. 

B. Obstruction of Justice, 18 U.S.C. § 1503 

“The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) 

a judicial proceeding was pending; (2) the defendant knew of the judicial 

proceeding; and (3) the defendant acted corruptly with the specific intent to 

influence, obstruct, or impede that proceeding in its due administration of 

justice.” United States v. Sharpe, 193 F.3d 852, 864 (5th Cir. 1999). Fisch 

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concedes that judicial proceedings were pending and that he knew of them. His 

attack is twofold: first, he argues that the government did not offer sufficient 

evidence of specific intent to influence, obstruct, or impede the proceedings; 

and second, he argues that 18 U.S.C. § 1515(c) operates as an affirmative 

defense to the obstruction charges. 

1. Specific Intent to Obstruct Justice 

A defendant’s specific intent to obstruct justice “can be proven by 

showing the defendant’s endeavors had the ‘natural and probable effect of 

interfering with the due administration of justice.’” United States v. Coppin, 

569 F. App’x 326, 337 (5th Cir. 2014) (quoting United States v. Aguilar, 515 

U.S. 593, 599 (1995)). “[A]n un successful ‘endeavor’ to obstruct justice violates 

section 1503; justice need not actually have been obstructed.” United States v. 

Williams, 874 F.2d 968, 981 (5th Cir. 1989). 

Evidence showed that Fisch implored criminal defendants not to accept 

plea agreements in return for false promises to favorably influence the outcome 

of their cases. As an example, Edilberto Portillo testified that he rejected a plea 

offer to be sentenced to no more than 80 months in prison “[b]ased on what Mr. 

Fisch and Mr. Williams told” his wife. He further testified that he did little to 

prepare for trial “[b]ecause Mr. Abraham Fisch told me that trial is never going 

to take place.” In addition, Ezinne Ubani testified that Fisch told her husband, 

Clifford Ubani, “not [to] take [a] plea” and “kept promising how he’s going to 

dismiss the case and stuff like that.” Fisch’s false representations clearly had 

the probable effect of interfering with the administration of justice. See United 

States v. Moree, 897 F.2d 1329, 1333 (5th Cir. 1990) (“It is hard to imagine a 

more invidious obstruction of justice than an offer to bribe officials in control 

of the judicial system to fix the result of a trial.”). 

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Viewed in the light most favorable to the verdict, the evidence was 

sufficient for the jury to find that Fisch obstructed justice.1

2. 18 U.S.C. § 1515(c)

The federal obstruction of justice statute, 18 U.S.C. §§ 1501-1521, 

contains a “general provision” at Section 1515. It provides, “[T]his chapter does 

not prohibit or punish the providing of lawful, bona fide, legal representation 

services in connection with or anticipation of an official proceeding.” 18 U.S.C. 

§ 1515(c). Fisch argues that Section 1515(c) acts as an affirmative defense to 

an obstruction of justice charge and that the government must disprove its 

applicability, but did not do so here. 

Fisch did not argue below that the government failed to meet its burden 

under Section 1515(c). We do not reach this new argument. See N. Alamo Water 

Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996) (“We will 

not consider an issue that a party fails to raise in the district court, absent 

extraordinary circumstances.”); see also United States v. Crawford, 60 F. App’x 

520, 532 (6th Cir. 2003) (“Because Crawford raises the § 1515(c) claim for the 

first time before this Court, the claim is waived.”). 

C. Failure to Timely File Income Tax Returns, 26 U.S.C. § 7203 

Under 26 U.S.C. § 7203, the government had to demonstrate “proof of 

failure to file [federal income tax returns] and willfulness in doing so.” United 

States v. Buckley, 586 F.2d 498, 504 (5th Cir. 1978). Willfulness “is simply the 

intentional violation of a known legal duty.” Id. (internal quotation marks 

omitted). Fisch admitted that he intentionally violated a known duty to file. 

The evidence was sufficient on the income tax counts. 

 

1 Fisch argues that if the court reverses on the conspiracy to obstruct justice and 

obstruction of justice convictions, it too must reverse on the conspiracy to commit money 

laundering and money laundering convictions. Because the evidence was sufficient on the 

relevant counts, this argument fails.

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III 

Fisch challenges whether his Fifth Amendment rights were violated by 

the denial of a hearing regarding the lis pendens on his home. The district 

court afforded Fisch numerous opportunities to present evidence of his 

financial inability to pay for counsel of choice without an order lifting the lis 

pendens. Once Fisch did submit information, it was only “a very brief 

statement with no supporting documents.” The district court found the 

submission “scant, conclusory, and insufficient” to show that Fisch lacked 

alternate, available assets. For example, Fisch continued to practice law but 

failed to state whether his law practice was continuing to generate income. 

Fisch again submitted information to the district court, but this time 

some of it was illegible. The district court ordered Fisch to resubmit legible 

information. At this stage, Fisch “elected not to file anything further,” choosing 

instead to stand by his position that “there is no threshold requirement” of 

demonstrating financial need. The district court rejected this argument but 

allowed Fisch yet another chance “to file the information, complete and 

legible,” otherwise Fisch’s failure would “end this issue.” Fisch declined.2

This court has observed “broad agreement that due process requires the 

district court to hold a prompt hearing at which the property owner can contest 

[a] restraining order . . . at least when the restrained assets are needed to pay 

for an attorney to defend him on associated criminal charges.” United States v. 

Melrose E. Subdivision, 357 F.3d 493, 499 (5th Cir. 2004) (citing United States 

v. Jones, 160 F.3d 641, 645 (10th Cir. 1998)). We have favorably cited Jones, 

which requires “[a]s a preliminary matter [that] a defendant . . . demonstrate 

to the court’s satisfaction that she has no assets, other than those restrained, 

 

2 Instead, Fisch filed a notice of appeal, which he subsequently dismissed. In his 

motion to dismiss that appeal, Fisch stated that he “d[id] not intend to pursue the appeal to 

conclusion.” 

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with which to retain private counsel and provide for herself and her family.” 

Jones, 160 F.3d at 647. 

We have declined to “elaborate the precise details of the circumstances 

and showings necessary to trigger a due process hearing” when it was not 

necessary to do so. Melrose, 357 F.3d at 501 n.5. No such expounding is needed 

here when Fisch ultimately elected not to file any evidence that would 

demonstrate his financial need. Fisch chose not to “provid[e] any further 

documentation pursuant to the court’s directive” and instead “object[ed] to any 

consideration of his financial status as a prerequisite to a . . . hearing.” He did 

so at his own peril.3 Even if the lis pendens were a restraint of property 

triggering due process protection—an issue we need not reach4—Fisch decided 

not to make any showing that “the restrained assets [we]re needed to pay for 

an attorney.” Id. at 499. 

Fisch has not made out a Fifth Amendment violation. 

IV 

 Fisch argues that his Sixth Amendment rights were violated by the 

government’s seeking a lis pendens on his home as an asset traceable to his 

criminal proceeds, which he claims the government never could prove. He 

asserts that the government’s conduct limited his ability to pay for counsel of 

choice. 

 

3 In contesting whether any threshold evidentiary showing was required, Fisch cites 

a Supreme Court decision, Kaley v. United States, 134 S. Ct. 1090 (2014). But he relies on the 

dissenting opinion and oral argument transcript rather than the Court’s majority opinion. As 

the district court noted, the Court in Kaley did not address what a threshold evidentiary 

showing entails.

4 Fisch also briefly argues that the lis pendens was a seizure requiring probable cause 

under the Fourth Amendment. This argument was not raised below. We review an 

unpreserved claim only for plain error, and Fisch fails to argue, much less show, that the 

elements of plain error review are met.

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As discussed above, Fisch’s decision not to make an evidentiary showing 

of financial need meant that the district court was not required to hold a 

traceability hearing. And ultimately the government did not have to establish 

traceability because it instead asked the district court to order the home 

forfeitable as substitute property. Because Fisch did not properly raise his 

specific objection to the government’s motion to forfeit the home as substitute 

property, see infra Part VII.B, we need not opine here on the propriety of the 

government’s recording a lis pendens on Fisch’s home for four years but 

ultimately forfeiting the home as substitute property. 

Fisch further asserts that the government made suggestions in bad faith 

that two of his attorneys below had conflicts of interest so that they would be 

disqualified. Fisch does not actually appeal the district court’s holding that 

attorney Norman Silverman had a conflict of interest requiring 

disqualification. And he admits it was attorney Mark Bennett that informed 

the district court, “I have learned that I have a potential conflict of interest.” 

Fisch offers no legal support for why his Sixth Amendment rights were violated 

due to his chosen attorneys’ conflicts of interest. 

Fisch has not established a Sixth Amendment violation. 

V 

Fisch summarily argues that “the entire proceedings were infected by 

prosecutorial misconduct.” He cites no specific constitutional right other than 

a vague reference to “due process and equal protection violations.” Fisch’s 

argument is not adequately briefed. See United States v. Scroggins, 599 F.3d 

433, 446-47 (5th Cir. 2010). At any rate, because Fisch “did not preserve error 

by objecting to these instances of alleged prosecutorial misconduct at trial,” the 

court “review[s] these claims only for plain error.” United States v. Tomblin, 46 

F.3d 1369, 1386 (5th Cir. 1995). Fisch has not made the requisite showing. 

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VI 

Fisch raises two challenges to the district court’s jury instructions. 

A. Failure to Instruct Jury on 18 U.S.C. § 1515(c) 

Fisch challenges the district court’s failure to instruct the jury that the 

government had the burden to prove beyond a reasonable doubt that Fisch’s 

conduct was not lawful, bona fide legal representation under 18 U.S.C. § 

1515(c). This issue was not raised before the district court, so this court reviews 

only for plain error. Fisch’s perfunctory argument does not include any factual 

support to satisfy a plain error showing. Moreover, the district court’s jury 

instructions on obstruction of justice, which tracked Fifth Circuit Pattern Jury 

Instruction (Criminal Cases) 2.63A, provided the essence of Fisch’s requested 

charge. See United States v. St. John, 267 F. App’x 17, 22 (2d Cir. 2008) 

(rejecting similar argument under plain error review because jury instruction 

on specific intent to obstruct justice “exclude[d] the possibility of bona fide legal 

advice constituting criminal behavior”). 

B. Deliberate Ignorance 

Fisch next argues that the district court abused its discretion in 

instructing the jury on deliberate ignorance. The government asked the district 

court to include a deliberate ignorance instruction on the obstruction of justice 

counts that modeled Fifth Circuit Pattern Jury Instruction (Criminal Cases) 

1.37A. Fisch objected. On appeal, Fisch argues that there was insufficient 

evidence to warrant the instruction. This court reviews for abuse of discretion. 

United States v. Fuchs, 467 F.3d 889, 901-02 (5th Cir. 2006). 

A deliberate ignorance instruction provides that the jury may find that 

a defendant knew of a fact if he deliberately shielded himself from that fact. 

The instruction must have a proper evidentiary basis, which is present “if the 

record supports inferences that (1) the defendant was subjectively aware of a 

high probability of the existence of illegal conduct; and (2) the defendant 

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purposely contrived to avoid learning of the illegal conduct.” United States v. 

Freeman, 434 F.3d 369, 378 (5th Cir. 2005) (internal quotation marks omitted). 

In determining whether the evidence supports the charge, the court must view 

the evidence in the light most favorable to the government. Id. This court has 

“consistently approved a deliberate ignorance instruction in [conspiracy] 

cases.” Sharpe, 193 F.3d at 872. 

Fisch challenges the sufficiency of the evidence on the second element: 

whether the record supported an inference that he purposely sought to avoid 

learning of illegal conduct. Fisch’s testimony at trial showed that he took what 

Williams said at face value, declining to ask questions about the legality of the 

proposed conduct. For example, Fisch testified that “[Williams] kept me out of 

it. He kept me in the dark basically as far as what he was doing and how he 

was doing it. I didn’t ask a lot of questions. . . . Mr. Williams basically kept me 

in the dark. Whatever I knew is what he told me.” He repeatedly testified that 

he “didn’t ask” specific questions of Williams. Fisch’s testimony supports the 

instruction. See United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 

1990) (holding that instruction is appropriate where defendant’s actions reflect 

demeanor of “[d]on’t tell me, I don’t want to know,” so jury can consider 

defendant’s “charade of ignorance” as circumstantial proof of knowledge). The 

district court did not abuse its discretion. 

VII 

Fisch appeals several aspects of the district court’s post-trial forfeiture 

orders. In particular, he challenges: whether the district court complied with 

Federal Rule of Criminal Procedure 32.2; whether the district court erred in 

forfeiting the home as substitute property; and whether the district court erred 

in including $450,000 in the money judgment. 

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A. Federal Rule of Criminal Procedure 32.2 

Fisch argues that the district court did not comply with Federal Rule of 

Criminal Procedure 32.2. The Rule states in part that the district court must 

determine before jury deliberations whether “either party requests” that the 

jury be retained to determine the forfeitability of specific property, in the event 

that the jury returns a guilty verdict. Fed. R. Crim. P. 32.2(b)(5)(A). Fisch 

admits he did not make a “request” before jury deliberations and that review 

is for plain error. United States v. Valdez, 726 F.3d 684, 698-99 (5th Cir. 2013).

Assuming that the district court clearly erred in not inquiring of the 

parties whether they wanted the jury to be retained, Fisch still must show that 

the error affected his substantial rights, i.e., it was prejudicial. Fisch has the 

burden of establishing “a reasonable probability that any forfeiture imposed 

would have been less than” what actually was imposed. United States v. 

Marquez, 685 F.3d 501, 510 (5th Cir. 2012). The difference, Fisch argues, is 

that the jury would have found that his home was not traceable to criminal 

proceeds. But that would not have been the case, as the government eventually 

sought a forfeiture order only in the form of a money judgment. He makes no 

argument as to how the money judgment would have differed. Fisch does not 

satisfy a plain error showing. Cf. id. (“Marquez simply focuses on the district 

court’s errors independent of any prejudice they may have caused.”).

B. Forfeiture of Home as Substitute Property 

Fisch challenges the government’s pre-trial tactic of alleging that his 

home was forfeitable as an asset traceable to his criminal proceeds under 18 

U.S.C. § 981 and then, post-trial, alleging that the home was forfeitable as 

substitute property under 21 U.S.C. § 853(p). He also argues that the 

government failed to meet the substitute property criteria of 21 U.S.C. § 853(p). 

These arguments were not properly raised below. Fisch’s counsel was 

given an opportunity at a combined forfeiture/sentencing hearing to object to 

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the government’s motion to amend the forfeiture order to include substitute 

property. Although Fisch’s counsel did not have an ideal opportunity to 

formulate and lodge objections—as the government’s forfeiture motion was 

served on the morning of the hearing—counsel did not raise either of the 

specific arguments that Fisch now raises on appeal. Under Federal Rule of 

Criminal Procedure 51(b), Fisch’s claims were not preserved and are reviewed 

now only for plain error. See Puckett v. United States, 556 U.S. 129, 133-35 

(2009) (discussing “contemporaneous-objection rule”). Fisch makes no attempt 

to satisfy plain error review, and we do not find it satisfied. 

C. Money Judgment 

Last, Fisch argues that the money judgment included $450,000 not found 

by the jury beyond a reasonable doubt. The court reviews the district court’s 

findings of fact as to forfeiture for clear error. United States v. Olguin, 643 F.3d 

384, 398 (5th Cir. 2011). Elida Sanchez testified that her son gave Fisch 

$450,000 in cash stored in a Stetson hat box. And her son testified that he put 

the hat box containing $450,000 in Fisch’s car. The district court’s finding that 

there was “extensive evidence” that the money was paid to Fisch was not 

clearly erroneous. 

VIII 

Finally, Fisch contends that trial counsel was ineffective. On the 

morning of sentencing, Fisch filed a “motion to determine the effectiveness of 

counsel,” arguing that his trial counsel, Michael McCrum, was ineffective in 

several respects. Fisch argued that McCrum: (1) failed to interview key 

government and defense witnesses; (2) failed to investigate or pursue potential 

defenses; (3) failed to introduce impeachment evidence; (4) failed to make 

evidentiary offers of proof to admit exhibits; (5) failed to request a defensive 

jury instruction on 18 U.S.C. § 1515(c); and (6) refused to request a trial 

continuance after falling ill during trial and undergoing surgery. Fisch 

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submitted exhibits supporting his claims, including affidavits and text 

message conversations between him and McCrum. 

The district court orally ruled on the motion without requesting further 

briefing or holding an evidentiary hearing.5 The government concedes that 

Fisch was not able to develop his claims below, which prohibits appellate 

review. We conclude that the factual issues underlying Fisch’s claims of 

ineffective assistance cannot be determined on the current record. The 

Supreme Court has noted that such factual issues are best resolved by the 

district court on 28 U.S.C. § 2255 review. See Massaro v. United States, 538 

U.S. 500, 505 (2003). Consequently, we decline to address Fisch’s ineffective 

assistance claims on direct appeal. Nothing about our affirmance of Fisch’s 

convictions affects Fisch’s right to bring ineffective assistance of counsel 

claims—including those that were stated in Fisch’s motion below—in a timely 

§ 2255 proceeding. 

IX 

We AFFIRM as to all issues except the district court’s denial of Fisch’s 

ineffective assistance of counsel claims, which may be raised anew in a timely 

§ 2255 proceeding. In permitting ineffective assistance to be raised collaterally, 

we express no view on the merits of that claim. 

 

5 The district court’s oral ruling only specifically addresses Fisch’s claim that McCrum 

was ineffective in “fail[ing] to call and to investigate [certain] FBI agents.”

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