The Colorado Court of Appeals issued its decision in People v. Randell on July 5, 2012.
Fraud—Tax Refunds—Theft by Receiving—Units of Prosecution—Forgery—Conspiracy—Computer Crime—Colorado Organized Crime Control Act—Prosecutorial Misconduct.
Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of multiple felonies in connection with a scheme to obtain fraudulent tax refunds and credits from the Colorado Department of Revenue (CDOR). Defendant’s twenty-six theft by receiving convictions were merged into five, the case was remanded for resentencing and correction of the mittimus, and the judgment was affirmed in all other respects.
Defendant, his girlfriend, and his wife diverted more than $11 million in fraudulent income tax refunds and credits from the CDOR to bank accounts and business entities controlled by defendant. Defendant asserted that he could not be convicted of twenty-six counts of theft by receiving under CRS § 18-4-410(7), because that statute required all thefts within a six-month period to be prosecuted as a single felony. Defendant was convicted of twenty-six counts of theft by receiving under CRS 18-4-410, based on acts occurring between August 29, 2005 and April 12, 2007. Starting with August 29, 2005, the facts support five convictions, not four as argued by defendant. Therefore, the twenty-six theft by receiving convictions were merged into five.
Defendant also challenged his convictions for forgery, conspiracy to commit forgery, conspiracy to commit computer crime, and violation of the Colorado Organized Crime Control Act (COCCA). Regarding the forgery charges, the jury could have found from the girlfriend’s testimony that she committed forgery by falsely making illegitimate tax refunds, or falsely altering legitimate ones, with intent to defraud the State of Colorado. Whether the jury believed defendant was guilty of forgery as a principal was irrelevant, because the evidence was sufficient to show that defendant was guilty, as a complicitor, for the forgery committed by the girlfriend. Regarding the computer crime charges, a rational jury could find that defendant’s creation of entities and communications of account information were overt acts in a conspiracy to commit computer crime, even if they were not criminal acts in themselves. Regarding the COCCA charge, defendant claims that his actions were not related to the conduct of an “enterprise.” Predicate acts in a pattern of racketeering activity must “protect the integrity of the ongoing enterprise” and be “related to the conduct of the enterprise.” Here, the indictment defined the alleged enterprise as more than a dozen corporate and other entities created by defendant and the girlfriend to receive fraudulent tax refunds. Defendant’s predicate acts were “related to the conduct of the enterprise,” because they channeled stolen money through corporate and other entities set up specifically for that purpose. Therefore, the evidence was sufficient to support the jury’s verdict on these convictions.
Defendant further argued that the prosecution engaged in prosecutorial misconduct. Specifically, the prosecution argued that defendant “stole from” the jury and “spent [jurors’] money” by defrauding Colorado taxpayers. Although the prosecution’s comments were improper, they did not undermine the fundamental fairness of this trial, where misappropriation of public funds was a central issue.
Summary and full case available here.
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