Justia White Collar Crime Opinion Summaries

Articles Posted in US Court of Appeals for the Tenth Circuit
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The class’s version of events painted the Hutchenses as cunning con artists who "puppeteered" a advance-fee loan scam from afar. Defendants Sandy Hutchens, Tanya Hutchens, and Jennifer Hutchens, a three-member family who purportedly orchestrated a loan scam, challenged a district court’s rulings to avoid paying all or part of the judgment against them brought pursuant to a class action suit. The Tenth Circuit concluded almost all of those challenges failed, including their challenges to the jury’s verdict, class certification, proximate causation, and the application of the equitable unclean hands defense. However, the Court agreed with the Hutchenses’ position on the district court’s imposition of a constructive trust on some real property allegedly bought with the swindled fees. The Court therefore affirmed in part, reversed in part, and remanded to the district court for entry of a revised judgment. View "CGC Holding Company v. Hutchens" on Justia Law

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Defendants, a married couple, opened numerous rewards accounts at OfficeMax using fictitious names and addresses. They fraudulently claimed other customers’ purchases as their own to generate undeserved rewards through OfficeMax’s customer loyalty program. As part of the scheme, Defendants also violated the terms of the reward program by using various accounts to sell more than 27,000 used ink cartridges to OfficeMax in exchange for OfficeMax rewards. In 21 months' time, they redeemed $105,191 in OfficeMax rewards. A jury convicted Defendants of wire fraud and conspiracy to commit wire fraud relating to their scheme to defraud OfficeMax. At sentencing, the district court ordered Defendants to pay $96,278 in restitution to OfficeMax and entered a separate forfeiture money judgment jointly and severally against Defendants in the amount of $105,191. In Defendants' first appeal, they argued the district court erred when it entered a forfeiture money judgment without proving the $105,191 constituted, or was derived from, proceeds traceable to the wire fraud. The government contended it proved Defendants fraudulently acquired OfficeMax rewards with a face value of $105,191, and that Defendants exchanged that credit for $105,191 in actual merchandise. At first glance, the Tenth Circuit surmised a district court’s order of forfeiture and its order of restitution appeared to be a double punishment, particularly when the district court ordered defendants to pay forfeiture and restitution in the same amount. Restitution exists to make victims whole; forfeiture punishes those who commit crimes. In some cases, a defendant either does not resell fraudulently obtained merchandise or does so at a discount and thus has no profit above the value of the merchandise. To address that scenario, the Tenth Circuit held here that a district court could base a judgment’s forfeiture amount on the value of the fraudulently obtained merchandise at the time a defendant acquired it. Furthermore, a district court may not reduce or eliminate criminal forfeiture because of restitution. Finally, the Court reaffirmed its holding that in personam money judgments representing the amount of unlawful proceeds are appropriate under the criminal forfeiture statutes. View "United States v. Channon (Brandi)" on Justia Law

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This appeal stemmed from an attempt to hold Defendant Paul Robben liable for securities fraud. Various Plaintiffs alleged that Robben fraudulently induced them to purchase ownership interests in a Kansas limited liability company named Foxfield Villa Associates, LLC (“Foxfield”). Plaintiffs argued that those interests were securities under the Securities Exchange Act of 1934. Plaintiffs contended Robben violated section 10(b) of the 1934 Act (its broad antifraud provision) and SEC Rule 10b-5 (an administrative regulation expounding upon that antifraud provision) when engaging in his allegedly deceitful conduct. The Tenth Circuit Court of Appeals determined that the specific attributes of the LLC interests in this case lead it to conclude the interests at issue were not securities as that term was defined by the Securities Exchange Act of 1934. The Court affirmed the district court's order declining to characterize the LLC interests as securities, thus granting summary judgment to defendants on those grounds. View "Foxfield Villa Associates v. Robben" on Justia Law

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In 2001, two chiropractors, defendant-appellant Dr. Thomas Forster Gehrmann, Jr., and Dr. Eric Carlson, opened Atlas Chiropractic Center in Colorado Springs, Colorado. They hired a newly graduated chiropractor, Dr. John Davis, as a preceptee, who eventually completed his preceptorship at Atlas, enabling him to become an associate at the business. In the last few months of 2006, Dr. Davis negotiated with the other two doctors for a one-third share of the business. In January 2007, Dr. Davis became a full partner in the practice. Drs. Gehrmann and Carlson advised Dr. Davis of an income-diversion scheme: placing cash payments and checks written to the treating doctor (as opposed to the business) in a cookie jar and regularly split those proceeds. Dr. Davis understood that the purpose of the scheme was to avoid claiming the diverted money as income on their tax forms. After splitting the money, each doctor deposited his share of this diverted money into his personal bank account instead of Atlas’s business account. They neither reported this income to Atlas’s bookkeeper or tax preparer nor paid taxes on it. Federal agents executed a search warrant at Atlas' office in 2011. By July 2015, a grand jury indicted Drs. Gehrmann and Carlson on four felony charges each: one count of conspiracy to defraud the United States, and three counts of filing false tax returns. A month later, Dr. Davis, who was cooperating with investigators, and not indicted, pleaded guilty to misdemeanor willfully delivering a false tax return to the Internal Revenue Service. In October 2018, after the Tenth Circuit reversed the district court’s order suppressing evidence seized under the search warrant, Dr. Carlson pleaded guilty to a felony count of filing a false tax return; Dr. Gehrmann went to trial, and a jury convicted him on all four counts. Dr. Gehrmann appealed a portion of the sentence he received. At district court, Dr. Gehrmann never objected to the adequacy of the sentencing court's explanation of its sentencing decision. The Tenth Circuit determined the district court did not adequately explain its basis for imposing its level adjustment to the sentence. But the Court also concluded that Dr. Gehrmann could not show a reasonable probability of a different sentencing outcome on a remand. The sentence was therefore affirmed. View "United States v. Gehrmann" on Justia Law

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After a bench trial, a district court decided that Defendants RaPower-3, LLC, International Automated Systems, Inc. (IAS), LTB1, LLC, Neldon Johnson, and R. Gregory Shepard had promoted an unlawful tax scheme. Defendants’ scheme was based on a supposed project to utilize a purportedly new, commercially viable way of converting solar radiation into electricity. There was no “third party verification of any of Johnson’s designs.” Nor did he have any “record that his system ha[d] produced energy,” and “[t]here [were] no witnesses to his production of a useful product from solar energy,” a fact that he attributed to his decision to do his testing “on the weekends when no one was around because he didn’t want people to see what he was doing.” Defendants never secured a purchase agreement for the sale of electricity to an end user. The district court found that Johnson’s purported solar energy technology was not a commercial-grade solar energy system that converts sunlight into electrical power or other useful energy. Despite this, Defendants’ project generated tens of millions of dollars between 2005 and 2018. Beginning in 2006, buyers would purchase lenses from IAS or RaPower-3 for a down payment of about one-third of the purchase price. The entity would “finance” the remaining two-thirds of the purchase price with a zero- or nominal- interest, nonrecourse loan. No further payments would be due from the customer until the system had been generating revenue from electricity sales for five years. The customer would agree to lease the lens back to LTB1 for installation at a “Power Plant”; but LTB1 would not be obligated to make any rental payments until the system had begun generating revenue. The district court found that each plastic sheet for the lenses was sold to Defendants for between $52 and $70, yet the purchase price of a lens was between $3,500 and $30,000. Although Defendants sold between 45,000 and 50,000 lenses, fewer than 5% of them were ever installed. Customers were told that buying a lens would have very favorable income-tax consequences. Johnson and Shepard sold the lenses by advertising that customers could “zero out” federal income-tax liability by taking advantage of depreciation deductions and solar-energy tax credits. To remedy Defendants' misconduct, the district court enjoined Defendants from continuing to promote their scheme and ordered disgorgement of their gross receipts from the scheme. Defendants appealed. Finding no reversible error, the Tenth Circuit affirmed the district court. View "United States v. RaPower-3" on Justia Law

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A district court dismissed Plaintiff–Appellant Lawrence Smallen and Laura Smallen Revocable Living Trust’s securities-fraud class action against Defendant–Appellee The Western Union Company and several of its current and former executive officers (collectively, “Defendants”). Following the announcements of Western Union’s settlements with regulators in January 2017 and the subsequent drop in the price of the company’s stock shares, Plaintiff filed this lawsuit on behalf of itself and other similarly situated shareholders. In its complaint, Plaintiff alleged Defendants committed securities fraud by making false or materially misleading public statements between February 24, 2012, and May 2, 2017 regarding, among other things, Western Union’s compliance with anti-money laundering and anti-fraud laws. The district court dismissed the complaint because Plaintiff failed to adequately plead scienter under the heightened standard imposed by the Private Securities Litigation Reform Act of 1995 (“PSLRA”). While the Tenth Circuit found the complaint may have given rise to some plausible inference of culpability on Defendants' part, the Court concurred Plaintiff failed to plead particularized facts giving rise to the strong inference of scienter required to state a claim under the PSLRA, thus affirming dismissal. View "Smallen Revocable Living Trust v. Western Union Company" on Justia Law

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This case arose out of a fraudulent business scheme involving the sale of the “Scrubbieglove” cleaning product. Defendant Pasquale Rubbo and other co-conspirators lied to investors to solicit money, ultimately defrauding them of more than six million dollars. The conspirators lured potential investors to the “Scrubbieglove” by lying about high returns on investment, potential and ongoing business deals, and how they would use and invest funds. They also misrepresented the Scrubbieglove’s production demand, telling told investors that the Scrubbieglove required substantial financing because of deals with QVC, Wal-Mart, Walgreens, and other major retailers. In reality, beyond producing a few samples, the conspirators never manufactured any Scrubbiegloves. Instead, the conspirators transferred investor funds to their own personal bank accounts. Defendant’s primary role in the scheme involved intimidating and threatening investors to ensure their silence. Defendant pleaded guilty to two fraud-related charges, and was sentenced to 106 months’ imprisonment. He appealed his sentence, alleging the government breached the Plea Agreement. Finding no breach, the Tenth Circuit affirmed Defendant’s sentence. View "United States v. Rubbo" on Justia Law

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Kenneth Brewington told potential investors that he owned or controlled billions in assets that didn’t exist. At trial, Brewington acknowledged that much of what he had said was untrue. But he argued to the jury that he had been duped. "The jury was apparently unimpressed," and found him guilty on eleven counts of: (1) conspiracy to commit mail and wire fraud; (2) mail fraud; (3) wire fraud; (4) conspiracy to commit money laundering; (5) money laundering; and (6) monetary transactions in property derived from specified unlawful activity. Brewington was sentenced to 70 months in prison. Brewington appealed the convictions based on the district court’s: (1) exclusion of emails that he had sent and received and (2) restriction of testimony by another person duped by the same man who had allegedly duped Brewington. The Tenth Circuit rejected these challenges, finding Brewington never offered some of the emails into evidence, so the court never had an opportunity to consider their admissibility. The district court did exclude three other emails. But if the court did err in these rulings, the errors would have been harmless because the district court ultimately allowed Brewington to testify about the emails, and the evidence of his guilt was overwhelming. View "United States v. Brewington" on Justia Law

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Defendant-Appellant Buck Leon Hammers served as the Superintendent of the Grant-Goodland Public School District in Grant, Oklahoma, until he was charged with conspiring with his secretary to commit bank fraud and embezzle federal program funds. Prior to trial, the Government moved to exclude a suicide note written by defendant’s secretary and co-conspirator, Pamela Keeling. In that note, Keeling took full responsibility for the fraud and exculpated Defendant of any wrongdoing. The district court granted the Government’s motion and prohibited Defendant from introducing the note at trial. The jury subsequently convicted Defendant of conspiracy to commit bank fraud, and conspiracy to embezzle federal program funds. The jury acquitted Defendant on the seven substantive counts of embezzlement and bank fraud. On appeal, defendant argued: (1) the district court erred in excluding the suicide note; (2) the Government did not present sufficient evidence to obtain a conviction; (3) the Government committed prosecutorial misconduct; and (4) the district court committed procedural error at sentencing. After review, the Tenth Circuit Court of Appeals determined the district court did not abuse its discretion in excluding the suicide note; the record contained evidence sufficient to support Defendant’s conviction, there was no prosecutorial misconduct, and no procedural error in the court’s calculation of Defendant’s sentence. View "United States v. Hammers" on Justia Law

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Defendant Karen McClaflin pled guilty to two counts stemming from the operation of a “fix and flip” real estate Ponzi scheme which defrauded investors of more than $14.5 million dollars. At sentencing, the district court calculated the advisory sentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level enhancement for substantial financial hardship to more than twenty-five victims, and then determined a downward variant sentence of 96 months was appropriate. On appeal, McClaflin argued the district court: (1) abused its discretion by denying her motion for an additional continuance of the sentencing hearing; (2) procedurally erred by imposing the 6-level enhancement based upon victim impact statements; and (3) failed to consider all of the requisite 18 U.S.C. 3553(a) factors. The Tenth Circuit determined the district court did not plainly err when it sentenced McClaflin, therefore it affirmed the judgment and sentence. View "United States v. McClaflin" on Justia Law