The Tenth Circuit Court of Appeals published its opinion in United States v. Clark on Tuesday, June 18, 2013.
Defendant-Appellant Richard Clark was charged and convicted of multiple counts relating to his participation in a “pump-and-dump” securities fraud scheme. He asserted several claims of error, with many arguments the same as those unsuccessfully made by his co-conspirator in United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013).
Clark argued “‘[t]he government violated [his] constitutional rights to due process and a fair trial’ in its pre-indictment decision to place a caveat on his home, without notice.” The Tenth Circuit found Clark had failed to preserve these arguments, but even under plain error review, they failed.
Clark challenged the sufficiency of the evidence on all of his counts of conviction: conspiracy to commit wire fraud, securities fraud, and money laundering; wire fraud; securities fraud; and money laundering. The court found there was sufficient evidence for any rational factfinder to determine that Clark had committed the acts resulting in conviction so his arguments were without merit.
Clark also claimed that he was denied a fair trial when the district court rejected his request under provisions of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to appoint substitute or additional counsel with expertise in securities law. The attorney who had represented him for over two years moved to withdraw due to nonpayment of legal fees but the district court denied the motion. Later, the attorney filed the CJA motion for substitute or additional counsel. The court found no abuse of discretion in the trial court’s denial. His attorney was a highly experienced criminal defense lawyer who had no conflict of interest. The CJA provides counsel necessary for an adequate defense, not an unlimited defense, so an additional attorney was not necessary based on the facts of this case.
Clark objected to the district court’s decision not to sever his trial from that of Mr. Gordon, his co-defendant. He argued that the admission of inculpatory out-of-court statements by Mr. Gordon violated his Confrontation Clause rights under Bruton. Because the statements were not testimonial, the court rejected this argument, as well as his other severance-related arguments.
Finally, the court found no abuse of discretion in the trial court’s ends-of-justice continuance under the Speedy Trial Act. The Tenth Circuit affirmed Clark’s conviction.