Published
US v. Mullins and US v. Edwards, 2010 WL 2947873 (Colo), 7/29/10 - Convictions and sentence on wire fraud and related charges affirmed. Defendants were real estate agents in Denver who were part of a scheme to defraud the Federal Housing Administration by obtaining mortgages based on bogus documentation. Held: 1) ten year statute of limitations for wire fraud that “affects a financial institution” applied; all that need be proven is that the scheme expose a financial institution to a new or increased risk of loss, and making loans to unqualified borrowers does that; 2) evidence was sufficient to show that interstate transmission was reasonably foreseeable, given that the defendants knew that FHA headquarters are in Maryland; 3) no abuse of discretion in limiting cross where defendant was afforded plenty of room in crossing witness about cooperation agreement with government; 4) making a false statement to HUD investigators was not a lesser included offense of wire fraud; 5) even assuming right to counsel continued after first indictment on different charges was dismissed, it applied only to the dismissed charges; 6) no error in not giving unanimity instruction that jury be unanimous as to exactly whom defendant aided and abetted; 7) loss calculation not clearly erroneous when based on outstanding loan balance minus foreclosure sale proceeds; 8) no plain error in failure to exclude one transaction from loss calculation; and 9) district court did not shift burden of proof on restitution amount merely by setting it “in the absence of evidence to the contrary.”
US v. Martin, 2010 WL 2977721 (Kan), 7/30/10 - Denial of motion to suppress in this felon in possession case affirmed. Defendant was a suspect in a shooting. Cops went to defendant’s girlfriend’s apartment building four hours after the shooting looking for him. The door was locked, but, as luck would have it, defendant and his girlfriend happened to be leaving and, as they opened the door, they encountered the cops. Defendant retreated into the atrium. Cops told him to put his hands on the wall. Defendant did not, but rather turned and refused to show his hands. He also said he had something on him, which the cops took to mean he had a gun. Cops went in, grabbed defendant, cuffed him, patted him down and got the gun and a clip. Even assuming the atrium was part of the residence, cops had probable cause to arrest him because he fit the description of the shooter and exigent circumstances - officer safety - to justify the warrantless entry, which the 10th described as an “extremely modest” intrusion.
Unpublished
US v. Sierrra, 2010 WL 3069712 (Utah), 8/6/10 - Conviction on meth charges affirmed. Defendant and his brother were selling to a female snitch. She picked their photos out of photo arrays. The cops did not preserve the three-photo array from which she identified defendant. Defendant’s motion to suppress the identification was denied, the district court finding the identification reliable, even though the arrays themselves were unduly suggestive, and no Brady violation. Snitch wouldn’t identify defendant at trial, so the government got into evidence her photo array identifications. Held: 1) the photo array identification evidence was sufficiently reliable; 2) losing the photo array did not present a Brady issue, but rather a spoliation issue governed by Youngblood and Trombetta, which was reviewed only for plain error; no error at all because there was no evidence the government acted in bad faith; and 3) evidence sufficient to support conviction.
US v. Mullins and US v. Edwards, 2010 WL 2947873 (Colo), 7/29/10 - Convictions and sentence on wire fraud and related charges affirmed. Defendants were real estate agents in Denver who were part of a scheme to defraud the Federal Housing Administration by obtaining mortgages based on bogus documentation. Held: 1) ten year statute of limitations for wire fraud that “affects a financial institution” applied; all that need be proven is that the scheme expose a financial institution to a new or increased risk of loss, and making loans to unqualified borrowers does that; 2) evidence was sufficient to show that interstate transmission was reasonably foreseeable, given that the defendants knew that FHA headquarters are in Maryland; 3) no abuse of discretion in limiting cross where defendant was afforded plenty of room in crossing witness about cooperation agreement with government; 4) making a false statement to HUD investigators was not a lesser included offense of wire fraud; 5) even assuming right to counsel continued after first indictment on different charges was dismissed, it applied only to the dismissed charges; 6) no error in not giving unanimity instruction that jury be unanimous as to exactly whom defendant aided and abetted; 7) loss calculation not clearly erroneous when based on outstanding loan balance minus foreclosure sale proceeds; 8) no plain error in failure to exclude one transaction from loss calculation; and 9) district court did not shift burden of proof on restitution amount merely by setting it “in the absence of evidence to the contrary.”
US v. Martin, 2010 WL 2977721 (Kan), 7/30/10 - Denial of motion to suppress in this felon in possession case affirmed. Defendant was a suspect in a shooting. Cops went to defendant’s girlfriend’s apartment building four hours after the shooting looking for him. The door was locked, but, as luck would have it, defendant and his girlfriend happened to be leaving and, as they opened the door, they encountered the cops. Defendant retreated into the atrium. Cops told him to put his hands on the wall. Defendant did not, but rather turned and refused to show his hands. He also said he had something on him, which the cops took to mean he had a gun. Cops went in, grabbed defendant, cuffed him, patted him down and got the gun and a clip. Even assuming the atrium was part of the residence, cops had probable cause to arrest him because he fit the description of the shooter and exigent circumstances - officer safety - to justify the warrantless entry, which the 10th described as an “extremely modest” intrusion.
Unpublished
US v. Sierrra, 2010 WL 3069712 (Utah), 8/6/10 - Conviction on meth charges affirmed. Defendant and his brother were selling to a female snitch. She picked their photos out of photo arrays. The cops did not preserve the three-photo array from which she identified defendant. Defendant’s motion to suppress the identification was denied, the district court finding the identification reliable, even though the arrays themselves were unduly suggestive, and no Brady violation. Snitch wouldn’t identify defendant at trial, so the government got into evidence her photo array identifications. Held: 1) the photo array identification evidence was sufficiently reliable; 2) losing the photo array did not present a Brady issue, but rather a spoliation issue governed by Youngblood and Trombetta, which was reviewed only for plain error; no error at all because there was no evidence the government acted in bad faith; and 3) evidence sufficient to support conviction.
posted by Anonymous at 11:30 AM
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