796 F.3d 1251 (10th Cir. 2015), 14-7077, United States v. Calhoun

Docket Nº:14-7077
Citation:796 F.3d 1251
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SCOTT CALHOUN, Defendant - Appellant
Attorney:Linda A. Epperley, Assistant United States Attorney (Mark F. Green, United States Attorney and Christopher Wilson, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee. James G. Wilcoxen, Muskogee, Oklahoma, for Defendant-Appellant.
Judge Panel:Before PHILLIPS, BALDOCK, and EBEL, Circuit Judges.
Case Date:August 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Defendant Michael Calhoun (and two co-conspirators) prematurely sought to appeal a district court order denying his motion to quash the indictment against them. The 60-count indictment arose out of Defendant’s grand jury testimony. In it, Defendant was charged with 50 counts of mail and wire fraud and conspiracy to commit the same. Absent a “final decision,” the Tenth Circuit Court of Appeals dismissed the appeal for want of subject matter jurisdiction. On remand, Defendant entered into a plea agreement with the Government, whereby Defendant pled... (see full summary)

 
FREE EXCERPT

Page 1251

796 F.3d 1251 (10th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL SCOTT CALHOUN, Defendant - Appellant

No. 14-7077

United States Court of Appeals, Tenth Circuit

August 10, 2015

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. (D.C. No. 6:12-CR-00061-RAW-1).

Linda A. Epperley, Assistant United States Attorney (Mark F. Green, United States Attorney and Christopher Wilson, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

James G. Wilcoxen, Muskogee, Oklahoma, for Defendant-Appellant.

Before PHILLIPS, BALDOCK, and EBEL, Circuit Judges.

OPINION

BALDOCK, Circuit Judge.

This matter was previously before the Court when Defendant Michael Calhoun (and two co-conspirators) prematurely sought to appeal a district court order denying his motion to quash the indictment. The 60-count indictment, which we are told arose wholly out of Defendant's grand jury testimony, charged Defendant with 50 counts of mail and wire fraud and conspiracy to commit the same. Absent a " final decision," we dismissed the appeal for want of subject matter jurisdiction. United States v. Tucker, 745 F.3d 1054, 1062-70 (10th Cir. 2014). Back in district court, Defendant entered into a plea agreement with the Government. Defendant pled guilty to one count of conspiracy to commit wire or mail fraud in violation of 18 U.S.C. § 1349, and reserved his right to appeal the denial of his motion to quash. The district court sentenced Defendant to five years probation. The court did not impose a fine or order restitution. Defendant again appealed. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

Our decision dismissing Defendant's original appeal set forth the complex historical and procedural facts of this case. Tucker, 745 F.3d at 1057-62. For purposes of the present appeal, both parties have adopted that factual recitation in its entirety as their own. We therefore need not repeat the facts here. Rather, we simply assume the reader's familiarity with the facts as recited in Tucker. This allows us to proceed directly to Defendant's claim that a " division of loyalties," i.e., conflict of interest, on the part of his retained counsel prompted his incriminating grand jury testimony, thus tainting the indictment. Specifically, Defendant asserts his criminal counsel, Tom Mills--hired and paid by Texas Capital Bank on the recommendation of his civil counsel Larry Friedman--encouraged Defendant to incriminate himself before the grand jury for the purpose of assisting the Bank in its efforts to overturn a $65 million civil judgment related to the scheme.1 See id. at 1058. Defendant says this imbroglio rendered his criminal counsel ineffective in violation of his Sixth Amendment right to counsel, thereby requiring suppression of his grand jury testimony and quashing of the indictment.2

Perhaps Defendant portrays his quandary accurately when he tells us the prospect of maintaining any defense was gone after he made his incriminating statements to the grand jury. But that alone does not render his testimony or the resulting indictment constitutionally infirm under the Sixth Amendment's right to counsel clause. To be sure, the Supreme Court has recognized " the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party." Wood v. Georgia, 450 U.S. 261, 268, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). One risk of such arrangement, apparent here, is that " the party paying the fees may have had a[n] . . . interest...

To continue reading

FREE SIGN UP