April 19, 2018

Tenth Circuit: Defendants Found Liable for ATV Protest Ride on Recapture Canyon in Utah

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wells on Monday, October 23, 2017.

In 2007, the Bureau of Land Management (BLM) closed part of Recapture Canyon in Utah to all-terrain vehicles (ATVs) due to potential damage to the soil and archaeological sites. Although this was intended to be temporary, the order was still in place in 2014. Upset at the delay in reopening, County Commissioner Lyman organized a protest ride on ATVs into the closed portion of the Canyon. Wells, who ran a website that reported on local news, assisted and interviewed Lyman, while also encouraging others to the protest. Despite warnings from the BLM that criminal and civil penalties would be enforced against anyone riding ATVs in the closed portion of the Canyon, the ride took place in May of 2014. There is undisputed evidence that both Lyman and Wells rode ATVs in the protest.

At trial, Lyman and Wells were found guilty for riding ATVs on the closed lands and with conspiracy to do the same. On appeal, Defendants seek a new trial, arguing that a reasonable observer would have questioned the district judge’s impartiality. Although the judge did ultimately recuse before sentencing, Defendants contend he should have recused earlier. Further, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial, and their restitution order. Lyman separately argues that he was deprived of effective assistance of counsel. The Tenth Circuit addressed each claim in turn.

The first argument was that the district court judge, Judge Shelby, should have recused earlier in the trial. Judge Shelby is close friends with the legal director for the Southern Utah Wilderness Alliance (SUWA), an organization that was opposed to the protest ride. The ultimate recusal was based largely on a letter to the judge signed by SUWA and other conservative groups that expressed views adverse to Defendants, as well as evidence that showed SUWA had extensive pretrial involvement with the case in passing information to BLM officials and the United States Attorney’s Office.

Defendants argued for a new trial, contending that Judge Shelby ought to have recused from participation in the trial because a reasonable observer would have questioned his impartiality, as Judge Shelby should have been alerted to SUWA’s involvement by their legal director’s presence at trial and by a voir dire question asking potential jurors if close friends or family members were in SUWA.

The Tenth Circuit found that the argument for a new trial failed on the merits. The Circuit reviewed Judge Shelby’s decision not to recuse early in the trial for an abuse of discretion and found that the decision not to recuse could not be characterized as arbitrary or manifestly unreasonable. The Tenth Circuit concluded that recusal was not required where SUWA was not a party to the criminal prosecution, and, further, there was no evidence that Judge Shelby should have known about SUWA’s pretrial involvement. As Judge Shelby did not err in failing to recuse, Defendant were not entitled to a new trial.

The Defendants next challenged the denial of their motions to dismiss. Wells claimed that he could not be prosecuted for his activities because they consisted of protected speech under the First Amendment. To determine whether Wells’ conduct was protected, the Tenth Circuit inquired as to whether there was a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for the hostility toward the defendant because he exercised his specific legal rights.

Wells argued that the prosecution’s hostility became evident when showings were made that SUWA had pushed for prosecution of the Canyon riders and that they regularly passed Wells’ social media posting on to prosecutors. However, the Tenth Circuit found that Wells did not present any evidence of prosecutorial hostility toward Wells’ exercise of his First Amendment rights. SUWA was simply interest in protecting the Canyon, not in limiting Wells’ First Amendment rights. The Circuit held that Wells failed to establish the requisite vindictiveness from the prosecution.

Lyman argued that the district court erred in denying his motion to dismiss when the government failed to allege interdependence, a required element of conspiracy. The Circuit applied a two-part test to determine the sufficiency of an indictment: First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. The Tenth Circuit found that Lyman’s argument implicated only the first prong of this test. Further, Lyman and Wells worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the Canyon in protest. The Tenth Circuit found that Lyman’s motion to dismiss argument failed.

Next, Wells argued that the government failed to introduce sufficient evidence that he was acting as a co-conspirator rather than a journalist. The Tenth Circuit inquired whether the evidence would establish each element of the crime of conspiracy, to wit: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant willfully entered the conspiracy. The Circuit found that the evidence presented by the government was sufficient for a jury to find beyond a reasonable doubt that Wells acted not merely as a journalist reporting on issues, but as a co-conspirator who agreed with Lyman to ride on the closed lands. More specifically, Wells reposted Lyman’s advertisements of the protest ride while adding flourishes of his own that suggest active support for, and agreement with, the planned ride.

Defendants next contested the district court’s denial of their motion for a new trial based on the post-trial discovery of a map which allegedly showed a right-of-way that the government failed to disclose before trial. Defendants argued that (1) the map would have permitted them to establish the existence of a right-of-way to negate the legality of the closure order on the Canyon, and (2) they should have been able to present the map as evidence relevant to their good-faith defense, since violation of the laws at hand require that the defendant act knowingly and willfully. The government argued that no violation occurred because the map in question was not material.

The Circuit found that the materiality of the map was at issue in this appeal. Materiality requires a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. The Tenth Circuit concluded that the map could not have been material for purposes of the Defendants’ good-faith defense, and, as the district court pointed out, the map could not be relevant because the Defendants were unaware of the map at the time of the ATV ride. A mere suspicion that a right-of-way existed is not an honest belief that the road was not legally closed to ATV use. The Tenth Circuit found that the Defendants could not establish that the map would have been material to their good-faith defense. Further, the map failed to create a reasonable probability of a different outcome so as to cast doubt on Defendants’ convictions. The Circuit held that the district court properly denied Defendants’ motion for a new trial.

Wells next challenged the restitution order holding him jointly and severally responsible with Lyman for $48,000. Wells challenged that it included: (1) harms that were not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) amounts that were not legally cognizable as actual loss or supported by the evidence. Lyman made a similar argument. Under the Mandatory Victims Restitutions Act (MVRA), courts are required to order a defendant to pay restitution to a victim of the offense. No party disputed that the United States constituted a victim under the MVRA; however, the question was for which alleged harms could the United States properly recover restitution. The government was required to show both that the defendant’s conduct was the ‘but-for’ cause of the harm and that the defendant proximately caused the harm.

The government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of the motorized damage to archeological, riparian, and upland soil resources in the closed area. The Tenth Circuit concluded that the government presented ample evidence to find by a preponderance of the evidence that the government’s contention was correct. The district court did not err in ruling that Defendants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants’ unlawful conspiracy to conduct a protest ride.

Next, Defendants challenged three aspects of the total amount of restitution ordered: (1) that the amount spent assessing the damage caused by the ATV ride was disallowed, speculative archeological expenses; (2) that the assessment costs were not incurred during participation in the investigation or prosecution of the offense; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. The Tenth Circuit first found that the government’s requested damages did not constitute speculative, archaeological damages. The archaeological value is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort. The Circuit held that the assessment that took place was detailed and anything but hypothetical.

Second, the MVRA provides that a victim must be reimbursed for expenses incurred during participation in the investigation or prosecution of the defense. The Tenth Circuit rejected Defendants’ assertion that the expenses were not incurred during the government’s participation in the investigation or prosecution of the offense, as the court has specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution.

Third, the Circuit concluded that the third argument was based on a mistaken view of the record. The government did not admit that its damages were not hard numbers. In context, the prosecutor was attempting to explain why restitution figures from an earlier case could not be considered as a basis for comparison in the present case. The Circuit found Defendants’ final argument misguided and spurious. The district court’s restitution award was upheld.

The last argument by Lyman was ineffective assistance of counsel. The Tenth Circuit found that ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. As Lyman made no attempt to argue that his claim should be addressed on direct appeal, the Tenth Circuit saw no reason to reach its merits.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s judgment and restitution order.

Colorado Court of Appeals: Payments by Victim’s Compensation Board are Direct Result of Defendant’s Conduct and Properly Ordered as Restitution

The Colorado Court of Appeals issued its opinion in People v. Henry on Thursday, April 5, 2018.

Restitution—Victim Compensation Board—Rebuttable Presumption—In Camera Review.

A jury convicted defendant of third degree assault. The trial court imposed a two-year jail term and ordered defendant to pay $900 in restitution. Defendant objected to the amount, requesting additional documentation to support the restitution request and a hearing. The court denied the request for additional documentation and granted the hearing request. After an evidentiary hearing, the court upheld its order regarding the restitution amount because defendant failed to offer any evidence rebutting the compensation board director’s testimony.

On appeal, defendant contended that the record did not contain sufficient evidence to support the trial court’s decision to order him to pay $230 in restitution to the compensation board for the victim’s lost wages. C.R.S. § 18-1.3-603(10)(a) creates a rebuttable presumption: once the compensation board has established that it paid a victim a set amount, the defendant has the burden of introducing evidence to show that the amount paid was not the direct result of his criminal conduct. Here, the prosecution proved by a preponderance of the evidence that the victim had lost $230 in wages and that the compensation board had paid that amount to her, and defendant did not rebut the presumption.

Defendant also asserted that the trial court should have conducted an in camera review of the compensation board’s records. Because defendant’s request for an in camera review was speculative and not based on an evidentiary hypothesis, the court did not err in denying defendant’s request for an in camera review.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Department Can Be “Victim” For Restitution Purposes

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, December 15, 2016.

Murder—Officer—Restitution—Victim—Workers’ Compensation Benefits—Beneficiaries.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Empowered to Consider All Relevant Conduct When Calculating Loss for Sentencing Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Alisuretove on Monday, June 8, 2015.

Elvin Alisuretove pleaded guilty to one count of conspiracy to commit wire fraud after authorities discovered his connection in a scheme to “skim” bank information off debit cards and make cash withdrawals from ATM machines. Alisuretove was sentenced to 63 months’ imprisonment followed by 36 months’ supervised release and was ordered to pay $240,682.27 in restitution. Alisuretove appealed both his sentence and restitution amount, arguing the district court erred in determining his total offense level, in calculating the amount of loss associated with his conduct, and in determining the amount of restitution owed under the Mandatory Victims Restitution Act (MVRA).

The Tenth Circuit first examined the total amount of loss attributed to Alisuretove. Under the Sentencing Guidelines, a loss between $200,000 and $400,000 would result in a 12-level increase to Alisuretove’s base offense level of 1. Alisuretove contends the district court’s calculation of $360,856.80 total loss was “clearly erroneous” because no evidence showed he placed or used the skimming devices. Alisuretove asserted that the only loss that should be attributed to him was the $140,000 he told officers about after arrest. The Tenth Circuit noted that the district court was empowered to consider not just the conduct proffered by defendant but also all of defendant’s relevant conduct. In this case, Alisuretove’s guilty plea, statements to law enforcement, and other evidence supported the district court’s calculation of $360,856.80 total loss. The Tenth Circuit found no error in this calculation.

The Tenth Circuit next evaluated the restitution amount under the MVRA. Alisuretove contended the district court erroneously took into account losses suffered by twelve financial institutions even though only five were named in the indictment. The Tenth Circuit found the word “victim” in the MVRA is not limited to only those victims named in the indictment but rather encompasses any person harmed in the course of defendant’s criminal conduct. However, because neither the PSR nor the district court made any factual findings regarding the specific losses suffered by the financial institutions, the Tenth Circuit remanded for recalculation of restitution.

The district court’s judgment was affirmed in part, reversed in part, and remanded for further findings.