Justia White Collar Crime Opinion SummariesArticles Posted in U.S. 10th Circuit Court of Appeals
CFTC, et al v. Lee, et al
The United States Commodity Futures Trading Commission (CTFC) and the Oklahoma Department of Securities brought suit against multiple corporate defendants (including Prestige Ventures Corporation) and several individuals, Kenneth Lee and his wife and two sons, Simon Yang. The Lees and Mr. Yang appealed pro se a district court's order entered in favor of CTFC. In their complaint, the CTFC alleged that defendants operated a Ponzi scheme that bilked at least 140 investors out of millions of dollars, in violation of a number of provisions of the Commodity Exchange Act and the Oklahoma Uniform Securities Act of 2004. Plaintiffs also alleged that millions of dollars were funneled to Defendants from Prestige by Mr. Lee, in cash and in the form of houses, cars, and boats. The court authorized a receiver to take possession of and sell the houses and boats. further, the court entered a broad array of permanent injunctive orders prohibiting defendants from further dealings in commodity futures and transacting investment-related business in Oklahoma. The court further ordered Defendants to pay over $5 million in restitution and a number of penalties, and ordered Defendants to disgorge large sums of cash. Each of the Lees filed a substantively identical motion for reconsideration of the Order. Having considered these issues and having reviewed the briefs, the record,and the applicable law in light of the applicable review standards, the Tenth Circuit affirmed the judgment of the district court for substantially the reasons stated in the district court’s order of summary judgment and its Order. View "CFTC, et al v. Lee, et al" on Justia Law
United States v. Strohm
In 2003, the Securities and Exchange Commission (SEC) sought a preliminary injunction against ClearOne Communications, Inc. based on suspicions of irregular accounting practices and securities law violations. During a hearing on the preliminary injunction, Defendant and former CEO Susie Strohm was asked if she was involved in a particular sale by ClearOne that was the focus of the SEC’s case. She said she was not and approximated that she learned of the sale either before or after the end of ClearOne’s fiscal year. Based on this testimony, Defendant was later convicted of one count of perjury. She argued on appeal to the Tenth Circuit that her conviction should be reversed because (1) the questioning at issue was ambiguous, (2) her testimony was literally true, and (3) even if false, her testimony was not material to the court’s decision to grant the preliminary injunction. The Tenth Circuit disagreed on all three points. The Court found the questions were not ambiguous and there was sufficient evidence to demonstrate Defendant knowingly made false statements. Also, Defendant's testimony was material to the preliminary injunction hearing because it related to a transaction the SEC believed demonstrated ClearOne’s accounting irregularities. The Court therefore affirmed Defendant's conviction. View "United States v. Strohm" on Justia Law
United States v. Ragland
Defendant Maurice Ragland was sentenced to 168 months in prison for his role in a mortgage fraud operation. He challenged his sentence as substantively unreasonable. From January 2002 to January 2004, Defendant participated in a mortgage fraud conspiracy through an appraisal business called TERM Appraisers. Defendant's role in the conspiracy consisted of providing fraudulent appraisals that manipulated values of comparable properties and falsely attributed features to homes being appraised. In addition to the false appraisals, TERM associates stole the identities of licensed appraisers and forged their signatures and license numbers on appraisals. TERM associates also created false identities and license numbers for nonexistent appraisers and used those identities to prepare the fraudulent appraisals. At sentencing, the court imposed a 16-level enhancement for a loss between $1 million and $2.5 million, and determined the proper Guidelines range to be 151 to 188 months' imprisonment. Defendant sought a variance, arguing that the Guidelines calculations did not reflect his allegedly minor role in the conspiracy. The district court refused his request, concluding that Defendant played a critical role in the conspiracy because the inflated appraisals were essential to the fraudulent mortgage loans. Upon review, the Tenth Circuit found that Defendant's perception that he should have received a shorter sentence did not rebut the presumption that his sentence was substantively reasonable. Accordingly, the Court concluded that the district court did not abuse its discretion in calculating Defendant's sentence. View "United States v. Ragland" on Justia Law
United States v. Blechman
In January 2009, Defendant-Appellant Robert Blechman and a codefendant, Itsik (Issac) Yass, were tried together in the District of Kansas on charges of mail fraud, aggravated identity theft, and conspiracy to commit mail fraud and aggravated identity theft. Evidence introduced at trial showed that Yass operated a business that he used to temporarily halt home foreclosures by "attaching" foreclosure properties to fraudulent bankruptcy cases in order to take advantage of the Bankruptcy Code’s automatic stay provision. After a two-week trial, the jury found Blechman and Yass guilty of all of the counts charged against them. The district court granted Blechman's motion for judgment of acquittal on the identity theft counts and ultimately sentenced Blechman to a total of eighteen months' imprisonment on the remaining counts. Blechman appealed, challenging the district court’s admission of an America Online (AOL) record that connected him to an e-mail address and three PACER records revealing that he accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. Blechman argued that these records contained double hearsay and that the district court erroneously admitted them under the business records exception to the hearsay rule. Upon review, the Tenth Circuit held that the district court erred in admitting the challenged AOL and PACER records under Rule 803(6). Nevertheless, because the Court concluded that the error was harmless, it affirmed Blechman's convictions. View "United States v. Blechman" on Justia Law
United States v. Irvin
Appellants F. Jeffrey Miller and Hallie Irvin were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, Miller and Irvin were each convicted on several of the charges and sentenced. They appealed their convictions, citing numerous evidentiary and legal errors. Miller also challenged his sentence. Miller was a builder and developer involved in residential construction in Kansas, Missouri, and other states. With many competing developers marketing their homes to well-qualified buyers, Miller chose to focus his business on buyers with low income and poor credit. The marketing of Miller’s homes was handled by Stephen Vanatta, who would refer potential buyers to a mortgage broker named James Sparks for financing. Because a prior felony conviction for passing a bad check prohibited Vanatta from maintaining a checking account, his portion of commissions were paid by checks issued to his wife, appellant Irvin. Upon review, the Tenth Circuit found the district court erred on three of the eleven charges against Defendant Miller, but affirmed the district court in all other aspects. The Court remanded the case for further proceedings. View "United States v. Irvin" on Justia Law
United States v. Cooper
Defendant-Appellant Michael Cooper was convicted by jury on one count of conspiracy to defraud, and multiple counts of mail and wire fraud, money laundering and engaging in transactions derived from unlawful activity. Defendant filed several motions with the district court including motions for a judgment of acquittal, a post-verdict motion for a new trial, and a motion to suppress evidence under the Fourth Amendment. The district court denied them all. On appeal, Defendant challenged the district court's denial of those motions. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit found Defendant failed to prove that the evidence presented against him at trial was insufficient to support his convictions. Therefore the Court affirmed the district court's denials of Defendant's motions for judgment of acquittal, for a new trial, and to suppress evidence, and affirmed Defendant's convictions.
United States v. Hoskins
Defendant Jodi Hoskins was convicted of tax evasion after she and her husband failed to pay taxes for income they earned through their Salt Lake City escort service. The government contended the Hoskins' failed to account for more than one million dollars in income generated in cash payments and credit card receipts. At sentencing, the government's tax loss was relevant to potential jail time and restitution under the United States Sentencing Guidelines. To minimize the tax loss for sentencing purposes, the Hoskins' offered hypothetical tax returns to account for the unreported income and attempted to take deductions they claimed they would have been entitled to but for the tax evasion. The district court rejected the hypothetical tax returns and accepted the government's tax-loss estimate. Defendant appealed her eventual sentence, arguing the sentencing judge abused his discretion in establishing the lost taxes. Furthermore, Defendant challenged the sufficiency of the evidence presented against her and the reasonableness of her sentence. Finding no abuse of discretion, and that the evidence presented at trial sufficient to support her sentence, the Tenth Circuit affirmed Defendant's conviction.
United States v. Manatau
Defendant Afuhia Masiu Manatau was in the business of stealing identities. Defendant stole social security numbers, credit cards and checks for which he would eventually be charged with and indicted for bank fraud and aggravated identity theft. This case turns on the question of an appropriate sentence. Seeking to calculate the applicable advisory guidelines sentence, the district court had to "identify the greater figure [of the actual or intended loss], and then proceed to one of the guidelines' inevitable charts." The question before the Tenth Circuit in this case is "what counts as an 'intended' loss? Unsurprisingly, [the Tenth Circuit] held that the term means exactly what it says: to be included in an advisory guidelines calculation the intended loss must have been an object of the defendant's purpose." Defendant argued that the government's "intended loss" analysis rested on a legal error. The Court remanded the case to the district court to properly determine Defendant's intended loss compared with the actual loss he caused, and to use the greater of the two to calculate Defendant's applicable sentencing enhancement.
United States v. Merriman
In 2009, Appellant Shawn Merriman approached an "otherwise unsuspecting US Attorney's Office" and disclosed that he had engaged in a long-running Ponzi scheme that defrauded investors of over $20 million. At the time of his disclosure, Appellant had offered several million dollars' worth of assets to the government so that it could liquidate them and eventually remit the proceeds to Appellant's victims. Appellant cooperated with authorities throughout the proceedings and ultimately pled guilty to one could each of mail fraud and forfeiture. Appellant appealed two of the district court's sentencing decisions, arguing: (1) the district court should have counted the assets Appellant initially turned over as a 'credit' against his victims' measured aggregate loss; and (2) the court erred by finding he occupied a 'position of trust' for a two-point enhancement. Because Appellant did not challenge the substantive reasonableness of the district court's sentence, the Tenth Circuit reviewed the case on appeal for procedural reasonableness. Finding no clear error in the district court's sentence calculation, the Tenth Circuit affirmed the lower court's sentence.
United States v. Senninger
Defendant Catherine Senninger was convicted on six counts of mail fraud and one count of making a false claim against the Government. She was acquitted on several other counts, including conspiracy and additional mail fraud counts. At trial, the Government presented evidence that Defendant, through her involvement with Olympia Financial and Tax Services, participated in a scheme to defraud the Internal Revenue Service and the Colorado Department of Revenue by preparing false tax returns. Defendant was sentenced to 36 months' imprisonment, which was an upward departure from the advisory guidelines range. Defendant challenged her sentence and subsequent restitution order. Upon review, the Tenth Circuit found the district court "properly rejected" Defendant's arguments. Accordingly, the Court affirmed Defendant's sentence.