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United States v. Ray

United States Court of Appeals, Tenth Circuit

August 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
AUSTIN RAY, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CR-00147-MSK-2)

          Jason B. Wesoky, Darling Milligan Horowitz PC, for Defendant-Appellant.

          Hetal J. Doshi, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with her on the brief), for Plaintiff-Appellee.

          Before HARTZ, McKAY, and MORITZ, Circuit Judges.

          MORITZ, CIRCUIT JUDGE.

         Austin Ray appeals his jury convictions for one count of conspiracy to defraud the United States, five counts of aiding in the preparation of a false tax return, and two counts of submitting a false tax return. In challenging his convictions, Ray first asserts that the government violated the Interstate Agreement on Detainers Act (IAD) of 1970, 18 U.S.C. app. 2 § 2. But because the government never lodged a detainer against Ray, the IAD didn't apply and the district court didn't err in denying Ray's motion to dismiss on this ground. Next, Ray alleges that the government engaged in vindictive prosecution. Yet Ray establishes neither actual nor presumptive vindictiveness, so this argument also fails. So too does his assertion that the district court violated his rights under the Speedy Trial Act (STA) of 1974, 18 U.S.C. §§ 3161-74; Ray waived the STA argument he advances on appeal by failing to raise it below, and in any event, Ray's STA clock never surpassed 70 days. Ray's next argument-that the government violated his due-process rights by destroying certain evidence-is also flawed. The evidence at issue lacked any exculpatory value. And even if the evidence were potentially useful to Ray's defense, the government didn't destroy it in bad faith. Finally, we reject Ray's assertion that the district court constructively amended the indictment; the district court narrowed, rather than broadened, the charges against Ray. Accordingly, we affirm.

         Background

         In March 2006, Ray and his wife opened a tax-preparation firm, Cheapertaxes LLC. To expand their business, Ray and his wife relied on word-of-mouth referrals from clients who received large tax refunds. Over the next four years, they greatly exaggerated their clients' itemized deductions, including Schedule A deductions like job expenses and charitable contributions, so that their clients would receive larger tax refunds. Thus, Ray and his wife knowingly prepared and submitted many false tax returns to the Internal Revenue Service (IRS).

         In April 2014-while Ray was living in a residential facility and participating in Colorado's community-corrections program as the result of unrelated offenses- the government arrested him on the federal tax-fraud charges central to this appeal. The government also charged Ray's wife with tax fraud. She pleaded guilty, but Ray rejected the government's plea offer. He represented himself at trial, and the jury convicted him on all counts. The district court imposed a 120-month sentence. Ray appeals, raising five issues.

         Analysis

         I. The Interstate Agreement on Detainers Act

         Ray first argues that the government violated the IAD when it twice transported him to and from Colorado before his federal trial concluded. The district court denied Ray's motion to dismiss based on the IAD. It found that the IAD didn't apply because the government never lodged a detainer against Ray with Colorado to begin with, and therefore the government could not have violated it. "We review a decision on a motion to dismiss under the IAD for abuse of discretion. As always, any legal questions implicated by that conclusion are reviewed de novo and any factual findings for clear error." United States v. Gouse, 798 F.3d 39, 42 (1st Cir. 2015) (citation omitted).

         No one disputes that once a "[r]eceiving [s]tate" lodges a detainer for a prisoner who is in the custody of a "[s]ending [s]tate," the IAD governs the transfer of that prisoner.[1] § 2, Art. II. Instead, the parties disagree about (1) what constitutes a detainer and (2) whether the government in this case ever lodged a detainer with Colorado.

         Generally speaking, a detainer is "a legal order that requires a [s]tate in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different [s]tate for a different crime." Alabama v. Bozeman, 533 U.S. 146, 148 (2001); see also United States v. Mauro, 436 U.S. 340, 359 (1978) (describing detainer as "a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction" (quoting H.R. Rep. No. 91-1018, at 2 (1970); S. Rep. No. 91-1356, at 2 (1970))).

         Ray asserts the district court erred in ruling that the federal government never lodged a detainer for him with Colorado. First, he maintains that all arrests constitute detainers under the IAD. In support, Ray points out that (1) the IAD fails to define detainer and (2) an arrest fits within the definitions that other sources, including Black's Law Dictionary, provide for that term.

         It's true that the IAD doesn't define detainer. But we need not speculate about whether an arrest can arguably fit within general legal definitions of that term. That's because we are bound by the pronouncements of the Supreme Court, and the Supreme Court has defined detainer on multiple occasions to mean something specific in the context of the IAD. See Bozeman, 533 U.S. at 148; Mauro, 436 U.S. at 359 (defining detainer as "a notification filed with the institution in which a prisoner is serving a sentence" (quoting H.R. Rep. No. 91-1018, at 2 (1970); S. Rep. No. 91-1356, at 2 (1970))). Because an arrest isn't "a notification filed with the institution in which a prisoner is serving a sentence," it doesn't fit within the Supreme Court's binding definition of detainer. Id. (quoting H.R. Rep. No. 91-1018, at 2 (1970); S. Rep. No. 91-1356, at 2 (1970)); see also Bozeman, 533 U.S. at 148.

         Next, Ray appears to broadly suggest that, by the process of elimination, his arrest must necessarily have been a detainer. According to Ray, the government can only obtain custody of a defendant who is serving a sentence in another jurisdiction via (1) a writ of habeas corpus ad prosequendum, [2] or (2) a detainer. And because the government indisputably didn't file a writ of habeas corpus ad prosequendum, Ray concludes his arrest was necessarily a detainer. Yet Ray fails to develop or provide any authority for his suggestion that one jurisdiction can obtain custody of a defendant who is serving a sentence in another jurisdiction only through (1) a writ of habeas corpus ad prosequendum or (2) a detainer. Thus, he's waived this argument. See Fed. R. App. P. 28(a)(8)(A) (stating that appellant's opening brief must contain "appellant's contentions and the reasons for them, with citations to the authorities . . . on which the appellant relies"); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (holding that arguments inadequately presented in appellant's opening brief are waived). In any event, as we've discussed, an arrest doesn't fit within the Supreme Court's definition of detainer. See Bozeman, 533 U.S. at 148; Mauro, 436 U.S. at 359. As such, even if we considered Ray's waived argument, we would reject it.[3]

         But our conclusion that Ray's arrest did not constitute a detainer doesn't end our inquiry. Ray alternatively contends that even if his arrest didn't constitute a detainer, the government nevertheless lodged a detainer with Colorado through other means. In support, Ray points to the following facts.

         The day after Ray's federal arrest, Gary Pacheco-the parole liaison for Colorado's community-corrections program-completed a form used to explain the reasons an offender is in custody and submitted it to the Colorado Department of Corrections. On that form, Pacheco wrote that the pending federal charges rendered Ray ineligible for Colorado's community-corrections program. Further, Pacheco twice used some iteration of the words "felony detainer." First, under the "[s]pecial [i]nstructions" heading, he wrote that Ray should be "place[d] in [D]enver county jail for r[e]gress to DOC, felony detainer feds." R. vol. 2, 367. Next, he wrote that the "justification" for this action was "felony charges from [f]ederal government detainer, no longer eligible for community[-]corrections, related to tax theft." Id.

         Ray suggests that Pacheco's repeated use of the term detainer indicates that the government must have lodged a detainer with Colorado. We disagree. Pacheco completed this form based on his telephone conversation with IRS agent Arlita Moon. And Pacheco testified that Moon neither uttered the word "detainer" during the call nor instructed him to hold Ray. In fact, Pacheco admitted that using the phrase "felony detainer" on the form "was probably a bad choice of word[s] on [his] part." R. vol. 6, 1306. As such, we reject Ray's contention that the mere appearance of the word "detainer" on the form means that the government in fact lodged a detainer against Ray. See United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980) (finding that district court "properly concluded" that notation "Hold for U.S. Marshals" wasn't detainer because "it was made by a state officer, without the direction of a federal agent or officer").

         Relying on United States v. Trammel, 813 F.2d 946 (7th Cir. 1987), Ray alternatively suggests that that the phone call between Moon and Pacheco itself constituted a detainer. But Trammel supports the opposite conclusion. There, a United States Marshal telephoned a local jail to provide advance notification that federal authorities would appear with a writ to pick up the defendant for an appearance in federal court. Trammel, 813 F.2d at 947. The sheriff's deputy who took the call placed a memo in jail records that the marshal would pick up the defendant and would "bring [the] writ along." Id. After the defendant was picked up and arraigned, he was returned to the ...


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