United States v. Kirtland
| Decision Date | 27 September 2012 |
| Docket Number | Case No.11-4090-JTM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BENJAMIN BOSTWICK KIRTLAND, III, and MARY JEAN KIRTLAND, defendants. |
| Court | U.S. District Court — District of Kansas |
This is a civil action brought by the United States of America seeking avoidance of allegedly fraudulent transfers of property and property interests from defendant Benjamin B. Kirtland, III, to defendant Mary Jean Kirtland. This action is brought pursuant to 28 U.S.C. §§ 3301-3308 which provides various remedies for the United States to seek relief as to a transfer of property deemed to be fraudulent as to a debt owed to the United States. This Court has jurisdiction pursuant to 28 U.S.C. § 1345, and venue is proper in the District of Kansas pursuant to 28 U.S.C. § 1391.
Benjamin Kirtland, is incarcerated at Devens FMC, Ayer, Massachusetts, outside of this district. Before his incarceration, he lived in Connecticut for a few months. For several years prior to that, he resided in Kansas. Mary Jean Kirtland now resides in Cary, North Carolina, outside the district. She moved from the District of Kansas, where she had been a resident for several years, in June, 2011.
The United States filed its First Amended Complaint seeking to avoid these transfers on December 6, 2011. Defendant Mary Jean Kirtland timely answered the Amended Complaint on December 8, 2011. Benjamin Kirtland has neither answered nor otherwise pleaded.
On December 22, 2011, the United States propounded Requests For Admissions to Benjamin Kirtland, but he failed to respond.
Both the government and defendant Mary Jean Kirtland have moved for summary judgment. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The Criminal Proceedings
Benjamin Kirtland was employed by Kansas Athletics, Inc., in Lawrence, Kansas, as the Associate Athletic Director of Development from July 2004 to April 5, 2010. He was responsible for raising funds for the athletic department at the University of Kansas. Kansas Athletics, Inc. is a non-profit agency that handles the marketing and selling of University of Kansas athletic tickets, parking passes and clubhouse passes.
Benjamin Kirtland became aware of the federal criminal investigation of illegal ticket sales at the University of Kansas in December 2009 after Agents from the Internal Revenue Service and the Federal Bureau of Investigation contacted Lew Perkins, Athletic Director for the University of Kansas, inquiring about illegal sale of tickets to athletic events at the University of Kansas by employees of the Williams Fund and the Athletic Ticket Office.
The University of Kansas initiated a civil investigation into the allegation of illegal ticket sales to University of Kansas athletic events by employees of the Williams Fund and the Athletic Ticket Office in December 2009.
Kansas Athletics, Inc., initially retained attorney Robin Fowler to represent Benjamin Kirtland in the civil investigation being conducted by the University of Kansas.
The first of several subpoenas issued by the United States Attorney's Office directed to Benjamin Kirtland investigating the illegal KU ticket sales was issued in March 2010.
Benjamin Kirtland refused to be interviewed in the civil investigation being conducted by Kansas Athletics, Inc., on April 4, 2010, and, instead, resigned his employment. Kansas Athletics told Robin Fowler and Benjamin Kirtland that it would no longer pay attorney fees after he refused to be interviewed as part of the University's investigation.
Benjamin Kirtland personally retained Robin Fowler to continue representing him in the federal criminal case about the time he resigned his position.
The Final Report To James P. Pottorff, General Counsel, University of Kansas, was published on the internet on May 26, 2010. This report identified Benjamin Kirtland as one of theemployees having conducted illegal ticket sales and stated that losses to the University of Kansas were over $1million.
On November 17, 2010, the United States filed its one count indictment against Benjamin Kirtland, in the United States District Court, District of Kansas, Case No. 10-10178-03-WEB, charging him, and his co-defendants, with violations of Title 18, U.S.C. §§ 371 and 1349, conspiracy to commit wire and tax fraud. This indictment also contained a Forfeiture Notice and Allegation and requested judgment including, but not limited to, a money judgment between $3 and $5 million.
On February 24, 2011, Benjamin Kirtland filed a Petition To Enter Plea of Guilty in the criminal case and entered his guilty plea to count one of the indictment, Conspiracy To Defraud The United States Through Wire Fraud, Tax Obstruction And Interstate Transportation Of Stolen Property, 18 U.S.C. §§ 371 and 1343. The Change of Plea acknowledged that the plea of guilty subjected him to liability for a Special Assessment of $100.00 per count; a fine of $250,000.00; a maximum term of imprisonment not to exceed 20 years followed by a term of supervised release; and acknowledged significant loss to the victim Kansas Athletics, Inc. Further, Kirtland consented to a monetary forfeiture judgment in the amount of $2 million, for which he was jointly and severally liable with his co-defendants.
The Final Order Of Forfeiture And Imposition Of Forfeiture Judgment, was entered in the criminal case by Judge Wesley E. Brown on March 15th, 2011, in the amount of $2 million.
The Presentence Investigation Report as to Benjamin Kirtland was filed April 26, 2011. This report was prepared by the Probation Officer assigned and circulated to counsel for Benjamin Kirtland and the federal prosecutor, Richard L. Hathaway prior to being filed.
Kirtland's co-defendants, Kassie Liebsch, Rodney Dale Jones, Thomas Ray Blubaugh, and Charlotte Faye Blubaugh were sentenced, respectively, on March 30, March 31, April 11, and April 14, 2011. Kassie Liebsch was sentenced to 37 months imprisonment, Jones to 46 months, Thomas Blubaugh to 46 months, and Charlotte Blubaugh to 57 months. Each of the defendants was also subject to a $100.00 assessment, and each judgment included a $2 million Forfeiture Judgment forwhich all named defendants are jointly and severally liable.1 The court also ordered restitution in the following amounts, with a designated portion reserved for Kansas Athletics, joint and severally with the other co-defendants, and another portion to the Internal Revenue Service:
+-----------------------------------------------------------------------------+
¦Defendant ¦Total Restitution ¦Kansas Athletics ¦IRS2 ¦
+-----------+----------------------+----------------------+-------------------¦
¦Liebsch ¦ ¦ ¦ ¦
¦Jones ¦$1,276,947.70 ¦$1,197,084.00 ¦$79,863.77 ¦
¦ ¦1,310,834.00 ¦1,197,000.00 ¦113,843.00 ¦
¦T. Blubaugh¦1,109,403.20 ¦841,111.29 ¦268,292.00 ¦
¦ ¦2,564,747.29 ¦2,296,455.29 ¦268,292.00 ¦
¦c. Blubaugh¦ ¦ ¦ ¦
+-----------------------------------------------------------------------------+
An Abstract of Judgment on the $2 million Final Forfeiture Order against Benjamin Kirtland Doc. 71, was filed in Johnson County, Kansas, on April 13, 2011, in Book 201184 at Page 3236.
Prior to April 22, 2011, Fowler and Richard Hathaway, Assistant United States Attorney, prosecutor on the criminal case reached an agreement in principal as to the Sentencing Agreement proposed by Benjamin Kirtland.
Prior to April 25, 2011, Fowler sent a draft Sentencing Agreement to Hathaway and another Assistant United States Attorney, Tanya Sue Wilson. On April 25, 2011, Benjamin Kirtland and his counsel executed the Sentencing Agreement in Case No. 10CR10178-03-WEB, which was then executed by the United States on April 26, 2011.
In the Sentencing Agreement, Benjamin Kirtland...
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