April 22, 2019

Archives for November 4, 2015

Tenth Circuit: District Court Erred by Evaluating Conduct in Choosing Applicable Sentencing Guideline

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kupfer on Wednesday, August 19, 2015.

Joseph Kupfer, along with his wife Elizabeth Kupfer, failed to report $790,000 in income for tax years 2004 to 2006 as part of a conspiracy to enable Dr. Armando Gutierrez to increase his compensation under a New Mexico state contract without doing additional work. The two were tried jointly on tax evasion charges and were found guilty. Additionally, Mr. Kupfer was tried on charges of stealing and conspiracy to steal government property in a joint trial with Dr. Gutierrez. He was found guilty on these charges as well and sentenced to 10 years in prison. Mr. Kupfer appealed the judgment and sentence on all counts.

The Tenth Circuit first addressed Mr. Kupfer’s argument that his tax evasion convictions should be overturned because his underreporting was not willful and the jury instructions failed to adequately advise that he could only be found guilty if the underreporting was willful. The Tenth Circuit disagreed, pointing to its analysis in Mrs. Kupfer’s appeal and concluding the district court acted within its discretion in declining Mr. Kupfer’s proposed instruction. Mr. Kupfer also argued that a juror affidavit alleging misconduct required the district court to hold a hearing, but the Tenth Circuit again disagreed, relying on its reasoning in Mrs. Kupfer’s appeal, and found the district court was within its discretion to decline to hold a hearing based on the affidavit.

Next, the Tenth Circuit turned to Mr. Kupfer’s allegations of error regarding his conspiracy trial. Dr. Gutierrez, a media consultant for the state, was paid millions by the state for three contracts: one to increase voter awareness, one for an anti-smoking campaign, and one for an elder abuse campaign. Dr. Gutierrez paid over $790,000 in kickbacks to Mr. Kupfer, who had influenced the state to give Dr. Gutierrez extra compensation. The government’s theory was that Mr. Kupfer earned only a small percentage of the money he was paid and the rest of the funds were illegal kickbacks. Using this theory, the government charged Mr. Kupfer with one count of conspiracy and three counts of stealing federal money or assisting another to steal federal money based on the three campaigns. Mr. Kupfer alleged the district court erred in allowing the government to introduce evidence of the anti-smoking and elder abuse campaigns. The Tenth Circuit found no error. Although the voter awareness and anti-smoking campaigns were separate and distinct, Dr. Gutierrez used funds from the voter awareness campaign to pay Mr. Kupfer’s consulting company for the anti-smoking campaign even though Mr. Kupfer’s company had done no work. The district court treated the evidence of the anti-smoking campaign as intrinsic and allowed its introduction. Mr. Kupfer argued the government wavered from this theory during trial but, after analyzing the record, the Tenth Circuit found the government’s theory unchanged through the course of the trial. Mr. Kupfer also argued the district court erroneously applied FRE 403, but the Tenth Circuit found any prejudice suffered by Mr. Kupfer was fair because of the inferences that could be drawn from the evidence available. The district court’s admission of the anti-smoking campaign evidence was affirmed.

Turning to the elder abuse campaign evidence, the Tenth Circuit noted that the government did not allege any wrongdoing as to the elder abuse contract, but rather it was admitted as a baseline to compare the cost of the anti-smoking campaign. Mr. Kupfer argued the evidence was erroneously admitted because there was no link between him and the elder abuse campaign, but the Tenth Circuit declined to reach Mr. Kupfer’s arguments, finding the evidence was correctly admitted as probative evidence unrelated to character and that any error in admitting the evidence was harmless.

Next, Mr. Kupfer argued his sentence was procedurally unreasonable because the district court (1) selected the wrong guideline for the offense, and (2) improperly enhanced the sentence based on obstruction of justice. The Tenth Circuit agreed with both arguments. When calculating the guideline range, the district court examined the evidence, which Mr. Kupfer asserted was error because the district court should only have looked at the offense of conviction as charged and presented to the jury. A 2000 amendment to the sentencing guidelines required the district court to look only at the offense of conviction and not the underlying conduct in selecting the relevant guidelines section. However, the district court determined that Mr. Kupfer’s conduct involved fraud against the government and included an elected official, and applied a different guidelines section than the one for Mr. Kupfer’s conviction of conspiracy to steal federal money. The district court’s error resulted in a guidelines range of 121 to 151 months imprisonment, but the Tenth Circuit’s calculations resulted in a guidelines range of 78 to 97 months. The Tenth Circuit reversed for recalculation of the sentence using the applicable guidelines range. Mr. Kupfer also argued the district court erred by applying an obstruction of justice enhancement, and the government agreed, as did the Tenth Circuit. On remand, the district court should not apply the enhancement.

The Tenth Circuit affirmed Mr. Kupfer’s convictions but reversed and remanded for resentencing consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 11/3/2015

On Tuesday, November 3, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Avalos-Chavez

Pyakurel v. Lynch

United States v. Jack

Waters v. Coleman

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.