United States v. Fisher

• Decision Date: 10 November 2015
• Docket Number: No. 14–3257.,14–3257.
• Citation: 805 F.3d 982
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jerold D. FISHER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

805 F.3d 982

UNITED STATES of America, Plaintiff–Appellee

v.Jerold D. FISHER, Defendant–Appellant.

No. 14–3257.

United States Court of Appeals, Tenth Circuit.

Nov. 10, 2015.

Timothy J. Henry, Assistant Federal Public Defender (Melody Brannon Evans, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Kansas, Wichita, KS, appearing for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Topeka, KS, appearing for Plaintiff–Appellee.

Before LUCERO, HOLMES, and MATHESON, Circuit Judges.

Opinion

MATHESON, Circuit Judge.

Jerold D. Fisher entered a plea agreement and pled guilty to submitting fraudulent tax returns to the Internal Revenue Service. In return, the Government promised, among other things, not to charge Mr. Fisher with any further crimes arising out of the same underlying conduct. Following the plea agreement and before sentencing, the district court found Mr. Fisher had breached the plea agreement and released the Government from its no-new-charges obligation. The Government then indicted Mr. Fisher on related structuring charges. The court subsequently reversed itself and reinstated the plea agreement, but the Government did not dismiss the new indictment.

At sentencing on the tax fraud charge, Mr. Fisher asked the district court to find that the Government (1) had breached the plea agreement by failing to dismiss the structuring charges, and (2) had engaged in vindictive prosecution. The court sentenced Mr. Fisher to 41 months in prison without ruling on either of those requests.

Mr. Fisher now appeals, arguing the district court committed procedural error by declining to decide his governmental breach claim. Because that claim is moot, we lack jurisdiction over it. To the extent Mr. Fisher attempts to raise a similar argument regarding his vindictive prosecution claim, he has forfeited that claim and waived it through inadequate briefing. We therefore grant the Government's motion to dismiss this appeal.

I. BACKGROUND

1. The Original Indictment and Plea Agreement

On May 1, 2013, a federal grand jury indicted Mr. Fisher on two counts of violating 18 U.S.C. § 287, which prohibits knowingly presenting “false, fictitious, or fraudulent” claims to any agency or department of the United States. According to the indictment, Mr. Fisher filed false Forms W–2 purporting to show that Fisher Alfalfa Farms, of which he claimed to be the registered agent, had paid him $8,877,934 in wages and withheld $3,997,436 in employment taxes for tax years 2006 through 2009. He also allegedly submitted fraudulent Forms 1040 for himself. Based on these fabricated documents, the U.S. Treasury sent him checks and electronic transfers totaling $3,866,021.

On February 14, 2014, Mr. Fisher and the Government entered into a plea agreement, under which the Government dismissed Count 1 in return for a guilty plea to Count 2. Mr. Fisher's promises in the plea agreement included the following:

c. The defendant agrees to fully and completely assist the United States in the identification and recovery of forfeitable assets, either domestic or foreign, which have been acquired directly or indirectly through the unlawful activities of the defendant.

d. The defendant agrees to cooperate fully with the United States Attorneys Office and to provide a financial statement on a form approved by the USAO that discloses all assets in which defendant has any interest or over which the defendant exercises control, directly or indirectly, including those held by a spouse, nominee or other third party, as well as any transfer of assets that has taken place in the last 5 years.

e. The defendant agrees to submit to an examination, which may be taken under oath and may include a polygraph examination.

....

g. The defendant agrees to not encumber, transfer, or dispose of any monies, property or assets under defendant's custody or control, without written approval from the United States Attorneys Office.

ROA, Vol. 1 at 48–49. In return, the Government agreed (1) not to “file any additional charges against the defendant, or any one acting in concert with the defendant, arising out of the facts forming the basis for the present indictment,” (2) to recommend a sentence of 36 months, and (3) to recommend a two-or three-level reduction for acceptance of responsibility under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1. ROA, Vol. 1 at 52. These obligations were “contingent upon the defendant's continuing manifestation of acceptance of responsibility as determined by the United States”:

In the event the Court finds the defendant has breached this plea agreement or otherwise failed to adhere to its terms, the United States shall not be bound by this paragraph and may pursue any additional charges arising from the criminal activity under investigation as well as any perjury, false statement, or obstruction of justice charges which may have occurred.

ROA, Vol. 1 at 52–53. The Government also bound itself “not to use new information the defendant provides about the defendant's own criminal conduct except as specifically authorized by U.S.S.G. § 1B1.8,” which permits the use of “self-incriminating information” against a cooperating defendant in limited circumstances. ROA, Vol. 1 at 53; U.S. Sentencing Guidelines Manual § 1B1.8 (U.S. Sentencing Comm'n 2014).

Finally, the plea agreement contained a waiver of Mr. Fisher's right to “appeal or collaterally attack any matter in connection with this prosecution, [his] conviction, or the components of the sentence to be imposed.” ROA, Vol. 1 at 55. The waiver contained an exception that permitted Mr. Fisher to bring “claims with regards to ineffective assistance of counsel or prosecutorial misconduct.” ROA, Vol. 1 at 56.

2. Initial Sentencing Hearing

As provided by the plea agreement, the Government deposed Mr. Fisher on May 6, 2014. On May 27, 2014, the district court conducted a brief sentencing hearing, at which neither party objected to the presentence report. The district court calculated the Guidelines range as 41 to 51 months and announced that it tentatively intended to impose the 36–month sentence jointly recommended by the parties. After explaining its reasons for that sentence, however, the court asked the Government how much of Mr. Fisher's unlawfully obtained money had been recovered. The Government responded that despite making “diligent efforts to try to locate assets,” it had only “recovered a fraction of the $4 million.” ROA, Vol. 3 at 11–12.

Unconvinced that the stolen funds were “gone to the wind,” the district court continued the sentencing to give Mr. Fisher an opportunity to “think about it some more and think about maybe there's some other information he might be able to offer.” ROA, Vol. 3 at 13. “[A]s it stands right now,” the court explained, “I'm not willing, without any further explanation, to honor the parties' agreement to sentence Mr. Fisher to under the guideline range. I'm just not. Not with this amount of loss.” ROA, Vol. 3 at 13–14. Mr. Fisher, as he was being led from the courtroom, exclaimed to the court, “Three million was lost in the stock market. They know that.” ROA, Vol. 3 at 15.

3. Government's Motion to Find Mr. Fisher in Breach of the Plea Agreement

The Government subsequently filed a Motion to Determine If Defendant Has Breached His Plea Agreement. The Government sought to be released from paragraph 5 of the agreement—which concerns the filing of additional charges, Mr. Fisher's recommended sentence, and acceptance of responsibility—on the ground that Mr. Fisher had not manifested acceptance of responsibility. In particular, the Government claimed that Mr. Fisher “ha[d] obfuscated on the issue of his assets and ha[d] failed to provide documentation, as requested, to establish that he lost $3,000,000 in the stock market as he represented to the Court in his aborted sentencing hearing on May 27, 2014.” ROA, Vol. 1 at 99. The Government also alleged “Fisher ha[d] been trying to get assistance from one or more fellow inmates at [Corrections Corporation of America] to help him move money that he ha[d] under his control covertly.” ROA, Vol. 1 at 99–100.

4. Second Sentencing Hearing

At a second sentencing hearing on July 7, 2014, the Government presented testimony from IRS Special Agent Lamont Wynn. Special Agent Wynn made allegations against Mr. Fisher based on information from Mr. Fisher's fellow inmate who was a cooperating witness in a different case.

First, Special Agent Wynn testified that according to the informant, Mr. Fisher had been making phone calls using other prisoners' personal identification numbers (PINs) to prevent Government monitoring of his calls. The informant had reported that on one such call, Mr. Fisher instructed his girlfriend, Renita Lewis, to sell weight-lifting equipment he had purchased with tax fraud proceeds. Second, Special Agent Wynn claimed Mr. Fisher had been tutoring other inmates on how to obtain tax refunds, both legally and illegally.

5. Third Sentencing Hearing

At a third sentencing hearing on July 28, 2014, the Government submitted a transcript of a May 9, 2014 phone call Mr. Fisher placed to Ms. Lewis, using another prisoner's PIN. Mr. Fisher started that call by telling Ms. Lewis, “Twelve with one of the long things,” then spoke in what appears to be code for several minutes, ROA, Ex. 1, to disguise, the Government argued, his efforts to dispose of assets through Ms. Lewis. At the end of the call, Mr. Fisher said if his family did not pay a $350 outstanding warrant for his arrest,

well they will see what $350 will cost them. It's going to cost motherfucking farm ground and five years in jail I can put them all away, there, so that's fine with me. I'm not going to do any more time for their stupidity and everything and their bullshit and stuff.

ROA, Vol. 4...