Monday, April 07, 2014

Court Lacked Jurisdiction to Consider Denial of Motion for New Trial Where Notice of Appeal Filed Before Motion for New Trial

U.S. v. Battles, 2014 WL 929166 (3/11/14) (Okl.) (Published) - The 10th had no jurisdiction to consider the district court's denial of Ms. Battles' motion for new trial. Her notice of appeal did not refer to the denial because she had not even filed the motion yet. And her brief didn't serve as a notice because the district court hadn't denied her motion yet. She should have filed a new notice of appeal within 14 days of the denial. Ms. Battles could not meet the prejudice prong of the plain-error-reversal standard with respect to 404(b) evidence that she destroyed evidence. That 2-question piece of evidence was a small part of the 4-day trial that was never mentioned again and there was the limiting instruction, of course. There was sufficient evidence of wire fraud where Ms. Battles lied about her income to get a loan and fabricated a document to misrepresent what she did with the loan proceeds. It didn't matter that the jury acquitted her of a related count. Inconsistent verdicts are irrelevant. There was sufficient evidence of money laundering. The government didn't have to prove no untainted funds were deposited along with the unlawful proceeds. The evidence showed Ms. Battles wrote a $15,000 check to her mother two days after depositing over $100,000 of fraudulently obtained loan proceeds in her checking account, which previously had $100. The 10th declined to address ineffective-assistance of counsel claims where the record on the matter had not been sufficiently developed below.

Ms. Battles' statements during what the 10th refers to as a pretrial "Rule 11 interview" did not entitle her to an acceptance of responsibility adjustment. She only "admitted" that she was "here today for my recordkeeping." And at trial she challenged the factual element of intent. There was no reasonable likelihood of vindictiveness as the reason for the government not making a plea offer as it did for Ms. Battles' mom. It could decide plea bargaining would be a wasted effort. The 10th found it unlikely Ms. Battles was surprised at sentencing when the d. ct. imposed restitution for a particular bank. That bank had long before filed a foreclosure petition she had to have known about. And even if she was surprised, due process only requires that the results of the procedure "generally" yield accurate results. She received notice of the factual basis for the restitution in the PSR, albeit without notice of the particular victim she complained about. And she was able to present counter evidence at sentencing. There's no right to confrontation at sentencing. So Ms. Battles had no right to impeach sentencing hearing testimony. Subtracting the sales price of the home from the outstanding balance on the loan was the right way to calculate restitution.