Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Jamis Johnson was convicted of seven counts of mail fraud, nine counts of wire fraud, one count of conspiracy to commit mail fraud and wire fraud, and ten counts of money laundering. He appealed the denial of a motion for a new trial, challenged the sufficiency of the evidence, and alleged several instances of prosecutorial misconduct. Finding no reversible error, the Tenth Circuit affirmed the district court. View "United States v. Johnson" on Justia Law

In 2004 the Securities and Exchange Commission (SEC) entered into a "Consent Judgment" with George Badger enjoining him from various activities and requiring him to pay $19.2 million. The government was only able to recover $6,548. It then sought a declaration that American Resources and Development, Inc. (ARDCO), Springfield Finance and Mortgage Company, LLC (Springfield), SB Trust, and ARDCO Leasing & Investment, LLC (ARDCO Leasing) (collectively, Defendants) were Badger’s alter egos so that their assets can be pursued to satisfy the Consent Judgment. While the claim was similar to one requesting to “pierce the veil” of a corporate entity and hold an individual liable for what on its face is a corporate debt, the Tenth Circuit saw the government's request in this case as a “reverse-piercing” claim because it sought to hold a corporation (or like entity) liable for the debt of an individual. The United States District Court for the District of Utah granted summary judgment for Defendants, ruling that the government’s reverse-piercing alter-ego theory was not available under Utah law. The Tenth Circuit rejected the district court's ruling, and held that Utah law recognizes the theory. The Court also rejected Defendants’ alternative ground for affirmance: that the claim is governed by the Federal Debt Collection Procedures Act and was therefore barred as untimely. The Tenth Circuit found the Act did not apply to this action to enforce a disgorgement order. View "United States v. Badger" on Justia Law

Defendant Marvin Iverson was convicted by jury of engaging in a scheme to defraud JPMorgan Chase and Big Horn Federal Savings. The statute under which he was convicted required that the victims be “financial institutions.” To establish that element of the offense, the government offered the testimony of an FBI agent to try to prove that JPMorgan and Big Horn were insured by the Federal Deposit Insurance Corporation (FDIC). On appeal Defendant argued that the agent’s testimony was inadmissible hearsay and violated the best-evidence rule. He also argued that even if the evidence was admissible, it was insufficient to prove that JPMorgan and Big Horn had FDIC insurance at the time of the offense. Despite the government’s concession to the contrary, the Tenth Circuit Court of Appeals held that the agent’s testimony was not inadmissible hearsay; it was either not hearsay or fell within a hearsay exception. As for the best-evidence rule, Defendant did not raise the issue below and he had not shown plain error. The Court also rejected defendant’s sufficiency-of-the-evidence challenge. View "United States v. Iverson" on Justia Law

Defendant-Appellant Keith Courtney was convicted by jury of three counts of wire fraud, for which he received a 24-month prison sentence followed by three years’ supervised release and ordered to forfeit $1,601,825.84, the full value of the fraudulent wire transfers at issue in the underlying case. In addition, the court imposed $493,230.88 in restitution. On appeal, defendant argued that: (1) the forfeiture order must be reduced by the amount the lenders received from the properties through mortgage payments and the sale of the properties; and (2) he should have been allowed to inform the jury of the possible sentence and its power to acquit him if they believed the conviction would be unjust. After review, the Tenth Circuit agreed with defendant on his first contention and reversed, and affirmed on the second. The case was remanded for further proceedings. View "United States v. Courtney" on Justia Law

Defendant-appellant Toby Martinez was convicted of mail fraud and conspiracy, which required the district court to order Martinez to pay restitution. At sentencing, the district court ordered Martinez to pay restitution through monthly installments. Nonetheless, the court later allowed the government to garnish Martinez’s retirement accounts, which exceeded what he owed in installments at the time. Martinez and his wife Sandra contested the garnishments, arguing in part that the government could not enforce payments that were not yet due under Martinez’s court-ordered payment schedule. After review, the Tenth Circuit agreed with Mr. and Ms. Martinez and concluded that the district court erred by allowing the garnishments to proceed. View "United States v. Martinez" on Justia Law

From 2002 to 2007, Defendant-appellant Jerold Sorensen, an oral surgeon in California, concealed his income from the Internal Revenue Service (“IRS”) and underpaid his income taxes by more than $1.5 million. He used a “pure trust” scheme, peddled by Financial Fortress Associates (“FFA”), in which he deposited his dental income into these trusts without reporting all of it to the IRS as income. Over the years, he also retitled valuable assets in the trusts’ names. In 2013, after a series of proffers, the government charged him with violating 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct and impede the due administration of the internal-revenue laws. A jury convicted him of the charged offense. On appeal, Sorensen argued his conduct amounted to evading taxes so it was exclusively punishable under a different statute; that the prosecution misstated evidence in its closing rebuttal argument; and (7) cumulative error. Furthermore, he argued the district court erred: (2) by refusing his offered jury instruction requiring knowledge of illegality; (3) by giving the government’s deliberate-ignorance instruction; (4) by instructing the jury that it could convict on any one means alleged in the indictment; and (5) by refusing to allow him to provide certain testimony from a witness in surrebuttal. Finding no merit to any of these contentions, the Tenth Circuit affirmed Sorensen's conviction. View "United States v. Sorensen" on Justia Law

The government successfully prosecuted defendant-appellant Joseph Kupfer in two trials, alleging Kupfer and his wife conspired to enable Dr. Armando Gutierrez (a media consultant) to increase his compensation under a State contract without any additional work. In exchange for the increase, Gutierrez allegedly gave kickbacks to Kupfer through Kupfer’s consulting company. The government alleged that Gutierrez had disguised the kickbacks as payments for Kupfer’s work on a separate media campaign involving voter awareness. In the first trial, the jury found Kupfer and his wife guilty of tax evasion. In the second trial, the jury found Kupfer guilty of stealing and participating in a conspiracy to steal federal government property with Gutierrez. The district court entered a judgment of conviction for these crimes and sentenced Kupfer to ten years in prison. Kupfer appeals the conviction and sentence on all counts. After review, the Tenth Circuit found no reversible error as to Kupfer's conviction. The Court did concluded that the district court miscalculated the sentence, reversed and remanded for resentencting. View "United States v. Kupfer" on Justia Law

Defendant Michael Calhoun (and two co-conspirators) prematurely sought to appeal a district court order denying his motion to quash the indictment against them. The 60-count indictment arose out of Defendant’s grand jury testimony. In it, Defendant was charged with 50 counts of mail and wire fraud and conspiracy to commit the same. Absent a “final decision,” the Tenth Circuit Court of Appeals dismissed the appeal for want of subject matter jurisdiction. On remand, Defendant entered into a plea agreement with the Government, whereby Defendant pled guilty to one count of conspiracy to commit wire or mail fraud and reserved his right to appeal the denial of his motion to quash. The district court sentenced Defendant to five years probation. The court did not impose a fine or order restitution. Defendant again appealed, arguing that a “division of loyalties,” i.e., conflict of interest, on the part of his retained counsel prompted his incriminating grand jury testimony, thus tainting the indictment. Specifically, Defendant asserted that his criminal counsel, Tom Mills (hired and paid by Texas Capital Bank on the recommendation of his civil counsel Larry Friedman) encouraged Defendant to incriminate himself before the grand jury for the purpose of assisting the Bank in its efforts to overturn a $65 million civil judgment related to the scheme. Defendant says the conflict rendered his criminal counsel ineffective in violation of his Sixth Amendment right to counsel, thereby requiring suppression of his grand jury testimony and quashing of the indictment. The Tenth Circuit affirmed the district court's judgment. "Precedent, both our own and that of the Supreme Court, provides us no alternative but to recognize that Defendant’s Sixth Amendment right to counsel did not attach until August 15, 2012, the date he was formally charged by way of indictment. Unfortunately for Defendant, his right to counsel claim centers on his counsel’s conduct prior to that date. Defendant has no remedy without a right. [. . .] Sure, Defendant did not want to be indicted . . . But the Government made no such promise." Defendant acknowledged at the hearing on his motion to quash that "'after I had given substantial help, then I would be granted probation.' Defendant understood this to mean 'a deal had been made and I would get probation at worst.' Then, after the prosecutor advised him that he would receive a downward departure for his assistance, Defendant testified before the grand jury. Defendant may not have received the deal he had hoped for, but he undoubtedly received the deal he expected." View "United States v. Calhoun" on Justia Law

Defendant-appellant Leslie Camick was convicted of mail fraud, wire fraud, making a material false statement to the U.S. Patent Office, three counts of aggravated identity theft, and obstruction of justice, all stemming from his unlawful use of his deceased brother’s name and identity. Following his conviction and sentencing, defendant was ordered to pay restitution. On appeal, he argued the evidence was insufficient to convict him on each count. He also challenged the district court’s restitution determination. Upon review, the Tenth Circuit reversed defendant's convictions for mail fraud, wire fraud, material false statement, and aggravated identity theft, as well as portions of the restitution award, finding that the evidence presented at trial was indeed insufficient to support those charges. But the Court affirmed the conviction for obstruction of justice. View "United States v. Camick" on Justia Law

Defendant Jeffrey Zander was convicted of two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns. The fraud and money laundering counts at issue in this appeal all arose out of Defendant’s scheme to divert federal grant money intended for the Paiute Indian Tribe for his own personal use. Defendant began working for the Tribe as a tribal planner in 1998, and he subsequently became the Tribe’s trust resource and economic development director. As a director, Defendant worked independently with minimal supervision. In about 2004 or 2005, Defendant suggested the Tribe seek federal grant money to fund the development of an Integrated Resource Management Plan (IRMP) for each of the Tribe's bands. The agency approved and awarded the following five IRMP development grants. Instead of hiring an outside consultant and facilitator to help develop IRMPs for each band, Defendant created false invoices and purchase orders for four fictitious companies and represented to the Tribe that these companies had provided consulting and facilitating services for the IRMP development projects. Based on these representations, the Tribe issued checks made out to these nonexistent companies and, at Defendant’s direction, either mailed the checks to post office boxes that were actually owned or controlled by Defendant or gave them to Defendant to hand-deliver to the purported companies. Defendant was sentenced to sixty-eight months of imprisonment and ordered to pay $202,543.92 in restitution to the Tribe. On appeal, he challenged his convictions on the mail fraud, wire fraud, and money laundering counts. He also challenged the length of his sentence and the amount of restitution awarded to the Tribe. Upon review, the Tenth Circuit found the trial court miscalculated defendant's sentence and restitution amount. It reversed and remanded for recalculation. The Court affirmed in all other respects, finding no reversible error. View "United States v. Zander" on Justia Law