Thursday, July 30, 2015

Court Rejects Challenges to Convictions, Sentences in Mail Fraud Scheme

U.S. v. Zar, 2015 WL 3853602 (6/23/15) (Col.) (Published) - The 10th holds the district court did not abuse its discretion when it denied the Zars' motion to sever from their co-defendants. The Zars objected to the delay caused by granting the co-defendants' continuance request. 130 days were excludable from the Speedy Trial Act because the delay was reasonable under 18 U.S.C. § 3161(h)(6), given that joint trials are favored, the court needed to hold a Rule 702 hearing regarding the co-defendant's expert witness, the Zars were free on bond, neither had previously asserted a speedy trial demand; the government was going to present one primary body of evidence against all 4 defendants, and motions were still pending. The court adequately explained granting the Zars' continuance motions for a 12-month delay. The court could rely on the facts that were obvious from the "detailed" motions and arguments: at least 29 elaborate mortgage transactions were involved prompting extra need for adequate defense preparation. The Zars were not in custody so as to trigger Miranda requirements where: when agents came to the Zar home, Mr. Zar first closed the door on them, asking them to give him a minute, and then a few minutes later he opened the door and let them in; and Ms. Zar implicitly invited the agents to sit at the kitchen table where the Zars and the agents conversed for 3 hours. It didn't matter whether the Zars subjectively knew they didn't have to talk to the agents, although the 10th was "troubled" by the agents' failure to advise the Zars that the interview was consensual.

The 10th says Cleveland v. U.S., 531 U.S. 12, 25-26 (2000), effectively overruled 10th precedent when the Supreme Court held the mail fraud statute, 18 U.S.C. § 1341, defines one single offense when it proscribes: (1) any scheme or artifice to defraud" and (2) "any scheme or artifice . . . for obtaining money or property by means of false or fraudulent pretenses, representations or promises." (2) merely describes one type of fraudulent scheme. By failing to include "defraud or" the district court did not omit an essential element. Indeed, it made it harder for the government. Including "or joined a scheme" in the instruction did not constructively amend the indictment, which charged that the defendants jointly participated in the mortgage fraud. Under the plain error standard, even assuming an obvious Crawford violation by admitting statements of Mr. Zar without a contemporaneous instruction that the statements could only be used against Mr. Zar, the reasonable-probability, third plain-error prong could not be met, given the independent evidence against Ms. Zar and the giving of a proper limiting instruction at the close of trial. The 10th declines to address an ineffective-assistance-of-counsel claim because the district court did not rule on the issue. The 10th rejects the claim that Alleyne and Apprendi apply to the advisory guidelines per 10th precedent, without noting 3 justices have indicated otherwise. See U.S. v. Jones, 135 S. Ct. 8 (2014) (Scalia, J.. dissenting from cert denial).

The defendants lose their challenges to restitution and loss calculations under 10th & S. Ct. precedent. The relevant-conduct losses were reasonably foreseeable. The district court's "admittedly sparse" findings regarding Mr. Zar's aggravating-role enhancement were sufficient so as not to hinder appellate review. The 10th could divine the basis for the enhancement from the specific parts of the trial record to which the prosecutor directed the court and the court's finding that the record clearly reflected Mr. Zar's manager or supervisor role. The evidence supported that conclusion. Mr. Zar recruited people to join the scheme, advised people on how to help the scheme, directed them to a particular real estate agent and provided loans for down payments. And the district court did all it was required to do when it imposed a within-guideline-range sentence. It noted the range, discussed several § 3553(a) factors, considered the variance arguments and stated reasons for rejecting those arguments.