August 19, 2019

Archives for March 9, 2016

Hon. Douglas Vannoy to Retire from 13th Judicial District Court

vannoyOn Wednesday, March 9, 2016, the Colorado State Judicial Branch announced that Hon. Douglas R. Vannoy will retire from the Thirteenth Judicial District Court, effective July 1, 2016.

Judge Vannoy was appointed to the Thirteenth Judicial District Court in 1988, where he hears a full range of cases, including civil, domestic relations, juvenile, and felony and misdemeanor criminal cases. Prior to his appointment, he was an attorney in a private practice, where he was a general practitioner. He received his undergraduate degree from Colorado State University and his law degree from the University of Denver College of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the Thirteenth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website or from the ex officio chair of the Thirteenth Judicial District Nominating Commission, Justice Richard Gabriel. Completed applications must be received no later than 4 p.m. on April 18, 2016, and anyone wishing to nominate another must do so no later than 4 p.m. on April 11, 2016.

For more information about the vacancy and the application process, click here.

Tenth Circuit: Appeal Moot When Requested Remedy Has Already Been Obtained

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fisher on Tuesday, November 10, 2015.

Jerold D. Fisher filed false W-2 forms for his business and Forms 1040s for himself, and received U.S. Treasury checks and electronic deposits totaling $3,866,021. He was indicted on two counts of violating 18 U.S.C. § 287, which prohibits knowingly presenting “false, fictitious, or fraudulent” claims to any federal agency or department. Fisher entered into a plea agreement with the government in which he agreed to cooperate with the government and help recover some of the assets. In exchange, the government agreed to not file any additional charges against him, recommend a sentence of 36 months, and recommend a two- or three-level reduction for acceptance of responsibility. The plea agreement also contained an appeal waiver.

At the sentencing hearing, the district court asked the government how much of the nearly $4 million it had recouped. When the government reported that only a fraction had been returned, the judge continued the sentencing hearing to give Fisher an opportunity to “think about it some more and think about maybe there’s some other information he might be able to offer.” Fisher exclaimed as he was exiting the courtroom that he’d already told the government he lost $3 million in the stock market. The government filed a motion to determine whether defendant had breached the plea agreement, seeking to be released from its obligation not to file further charges on the ground that Fisher had not accepted responsibility. The government specifically alleged that Mr. Fisher had failed to provide documentation of the stock market losses, and that he had been trying to get assistance in prison to move some of the money under his control.

After two sentencing hearings in which the government presented evidence of Fisher using another inmate’s PIN to make phone calls that were not monitored in order to conceal money, the district court granted the government’s motion for release from its obligations under the plea agreement based on its assumption that Fisher had not disclosed the failed stock market transactions until his excited utterance at the hearing. The government indicted Fisher on seven structuring charges the following month. However, both parties agreed that Fisher had provided the documentation of his failed stock market transactions prior to entering into the plea agreement. Based on the court’s misunderstanding, Fisher filed a motion for reconsideration of the release from the plea agreement, and the court granted his motion.

Fisher then filed a motion for Guidelines variance to time served, arguing the government had breached the plea agreement by filing a new indictment. As a remedy for the breach, Fisher sought to be relieved of his obligations under certain paragraphs of the plea agreement regarding cooperating with the government and disclosing assets. Fisher also accused the government of vindictive prosecution and sought a sentence of time served as a remedy. At the fourth and final sentencing hearing, the court did not consider Fisher’s arguments about vindictive prosecution, remarking that they were better heard by the judge presiding over the structuring case, and sentenced him to 41 months in prison followed by three years’ supervised release, ordering him to pay $4,039,781 in restitution to the IRS. After the fourth sentencing hearing, the government moved to dismiss the structuring charges.

Fisher filed a timely notice of appeal. The government sought to enforce the appeal waiver and also sought dismissal for mootness. The Tenth Circuit first evaluated Fisher’s argument that the district court erred in declining to rule on whether the government breached the plea agreement. The Tenth Circuit found that, because Fisher had already received his requested relief in the form of release from his cooperation obligations, the issue was moot and the Tenth Circuit lacked Article III jurisdiction based on the case-or-controversy requirement.

The Tenth Circuit declined to consider Fisher’s vindictive prosecution claim due to inadequate briefing, finding also that the claim was forfeited in district court. The Tenth Circuit noted that its local rules require a party to present its claims in a way that does not require the court to “scavenge through the brief for traces of argument.” The Tenth Circuit also held that Fisher should have argued in his opening brief that the district court committed error, and since he did not, he forfeited the argument.

The Tenth Circuit dismissed the appeal.

Tenth Circuit: Couple’s Conflicting Statements Indicate Sham Marriage for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Vladimirov v. Lynch on Tuesday, November 10, 2015.

Vladimir Vladimirov entered the United States in February 1996 as a nonimmigrant visitor authorized to stay until August 1996. However, he never left the United States. In 2005, he married Valentina Bakhrakh, a U.S. citizen. Bakhrakh filed an I-130 petition for alien relative to adjust Vladimirov’s immigration status, and Vladimirov filed an I-485 application for adjustment of status.

U.S. Customs and Immigration Services (USCIS) Officer Randall interviewed Bakhrakh and Vladimirov in March and May 2006 to ascertain the bona fides of their marriage. Based on their conflicting statements under oath about their address, how long they had lived there, the number of bedrooms and bathrooms at their address, Vladimirov’s marriage proposal, the type of ring, the wedding, their morning routine, and what they had done the previous weekend, Officer Randall requested a site visit, which occurred in April 2008 by USCIS Officer Gibson. Officer Gibson questioned Vladimirov about various items she found in home and he admitted they belonged to his ex-wife, not Bakhrakh. Vladimirov also admitted he and Bakhrakh did not have a valid marriage and had lied to make it appear as if they did. Officer Gibson met with Bakhrakh and her adult son the next day to discuss the evidence of the sham marriage and the consequences of falsifying an I-130. At the end of the interview, Bakhrakh withdrew the I-130 petition.

Based on Bakhrakh’s withdrawal of the I-130 and the evidence of the sham marriage, Officer Randall denied Vladimirov’s I-485 application. A Notice to Appear (NTA) was then filed against Vladimirov based on his misrepresentations and the sham marriage, and he requested a hearing in front of an immigration judge. The IJ determined the government had met its burden of establishing removability based on marriage fraud and ordered Vladimirov removed to Bulgaria. Vladimirov’s appeal to the BIA was dismissed.

Vladimirov appealed to the Tenth Circuit, arguing he was not given notice of the conduct forming the basis of the fraud charges, and the government’s evidence was insufficient to prove those charges. He also argued he was denied due process in the administrative proceedings. The Tenth Circuit denied each claim in turn. The Tenth Circuit found that the NTA clearly charged him with entering into a sham marriage with Bakhrakh, and fraud and willful misrepresentation in filing an I-485 based on the sham marriage. The marriage fraud charge was based on Vladimirov’s representation that he was in a bona fide marriage with Bakhrakh. The Tenth Circuit found that this provided a basis for removability, and the NTA gave Vladimirov adequate notice of the charges against him.

As for Vladimirov’s contention that the evidence was insufficient to prove the charges against him, the Tenth Circuit declined to independently weigh the evidence. The Circuit found substantial record support for the finding that the couple’s conflicting statements about their lives together indicated they were not in a valid marriage, and together with Vladimirov’s admission about the I-485 and Bakhrakh’s withdrawal of the I-130, ample evidence supported the IJ’s finding.

Turning to Vladimirov’s due process contentions, the Tenth Circuit noted that immigration proceedings need not approximate constitutional protections afforded to criminal defendants. Vladimirov asserted four violations of his due process rights. First, he argued he was not afforded an opportunity to cross-examine Officer Gibson. The Tenth Circuit noted that there was no circuit authority requiring personal appearance by a government agent. Although the Circuit noted that better contrary evidence than Officer Gibson’s report may have “carried the day,” Vladimirov chose not to testify in his own defense, thereby forgoing any opportunity to refute the information in Officer Gibson’s report. Vladimirov next contended that the government erred by introducing “triple hearsay” in Officer Gibson’s report. However, the Tenth Circuit again noted that hearsay is regularly used in administrative adjudications, which lack the constitutional requirement of confrontation as afforded to criminal defendants. Next, Vladimirov argued that the Form I-213 denial of his I-485 application was prepared in anticipation of litigation and so lacked a presumption of reliability. Again, the Tenth Circuit rejected Vladimirov’s arguments, finding no evidence of unreliability. Finally, the Tenth Circuit considered Vladimirov’s contention that Bakhrakh was coerced into withdrawing her I-130. The Tenth Circuit characterized the allegations as serious, but noted that informing someone of the consequences of marriage fraud is not coercion.

The Tenth Circuit denied Vladimirov’s petition to review.

Tenth Circuit: Unpublished Opinions, 3/8/2016

On Tuesday, March 8, 2016, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

AT&T Mobility Services, LLC v. Village of Corrales

Dawson v. Lloyd

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