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United States v. Powell

United States District Court, D. Colorado

November 18, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
CROSBY POWELL, Defendant.

MEMORANDUM AND ORDER

Kathryn H. Vratil United States District Judge

This matter comes before the Court on defendant’s Motion For Appointment Of Counsel And/Or Advisory Counsel (Doc. #465) and Defendant’s Motion For An Order [Of] Reassignment Of This Case To A Judge In The District Of Colorado (Doc. #467), both filed August 10, 2015, and defendant’s Amended Rule 33(b)(1) Motion [For New Trial Based On Newly Discovered Evidence] Pursuant To Federal Rules Of Criminal Procedure (Doc. #483) filed October 14, 2015. Also before the Court are numerous motions related to defendant’s motion for a new trial.

Facts

On January 25, 2011, the grand jury charged defendant with 13 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and seven counts of fraud related to securities of private entities under 18 U.S.C. § 513(a). See Indictment (Doc. #1). On June 21, 2011, the grand jury returned a superceding indictment which charged defendant with 17 counts of possession of stolen mail in violation of Section 1708 and 11 counts of securities fraud under Section 513(a).

Beginning July 16, 2012, the Court conducted a nine-day jury trial. Highly summarized, the evidence at trial included the following.

In October of 2006, a TCF Bank investigator contacted Postal Inspectors Brian Mullervy and Richard Sheehan about possible bank fraud involving stolen checks. The investigator told the Postal Inspectors that approximately $70, 000 in stolen checks had been deposited into defendant’s “Dis Wire” account at TCF Bank in Denver, Colorado. The Postal Inspectors went to the TCF Bank and contacted a teller who identified defendant as the person who had deposited the checks. The Postal Inspectors also retrieved the stolen checks and the related deposit slip. The Inspectors then contacted defendant and he agreed to meet with them. Defendant acted surprised when they told him that the checks were stolen. Defendant stated that he had two businesses involving business cards, used cell phones and used computers. He said that the checks which he had deposited came from customers who had purchased merchandise from him.

Numerous witnesses testified regarding stolen checks that had been deposited into defendant’s TCF bank account and other bank accounts at UMB Bank and Wells Fargo. These witnesses testified that they had placed specific checks in an authorized mail receptacle, and that the checks were intended to be received and deposited by the intended recipient. The witnesses further testified that defendant did not have any authority or permission to possess the checks or deposit them in his accounts. Numerous other witnesses to whom the checks were mailed testified that they never received specific checks and had not given defendant permission to possess the checks or deposit them in his accounts.

Cheston Foster testified regarding his involvement in defendant’s schemes. Foster pled guilty to a felony regarding his illegal activity. He testified that on October 16, 2008, defendant directed him to deposit an altered check. Although he was supposed to give defendant the money from the check, he lied and told defendant that he did not deposit the check, and then kept the money. Foster also testified that he had seen defendant in possession of United States Treasury checks stolen from the mail.

Kenneth Lee testified that he was an unwitting accomplice to defendant’s fraud by opening a bank account at defendant’s direction, purportedly for deposit of social security disability checks.

Tellers and bank investigators also testified that many of the stolen and forged checks had a “%” sign, which tellers who received the checks interpreted to mean “in care of.” FBI Special Agent John Elvig testified under a limiting Rule 404(b) restriction that defendant was involved in similar activities in 1992 through 1994 and that he used similar techniques in those schemes.

On August 2, 2012, a jury found defendant guilty on all 28 counts. On December 7, 2012, the Court sentenced defendant to a total of 120 months in prison. Doc. #298. Defendant appealed the 11 convictions under Section 513(a). On September 22, 2014, the Tenth Circuit reversed defendant’s convictions on eight of the Section 513(a) counts, finding insufficient evidence that the forged checks’ payors, payees or drawee banks were organizations operating in interstate commerce. United States v. Powell, 767 F.3d 1026, 1033 (10th Cir. 2014). The Tenth Circuit remanded for resentencing. On May 15, 2015, the Court sentenced defendant to 120 months in prison. See Doc. #437.

Analysis

I. Motion For Reassignment (Doc. #467)

On January 20, 2012, Chief Judge Wiley C. Daniel assigned this case to the undersigned judge. Defendant now asks for reassignment of the case, citing D. C. Colo. LCrR 50.1[1] Defendant states that he seeks reassignment “for good cause of judicial performance and fairness to defendant in the interest of justice in timely disposing issues before the Court without timely delays of out of District Scheduling with the current Judicial Officer.” Doc. #467 at 1. Rule 50.1 does not provide authority for defendant to request reassignment of this case. The question of recusal is for the judge currently assigned to the case.

The Court exercises discretion in deciding whether to recuse. See Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987). Sections 144 and 455 of Title 28, United States Code, govern motions for recusal. Section 144 provides as follows:

[w]henever a party to any proceeding in district court makes and files a timely affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists . . . [and] shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. ยง 144. Defendant has not filed an affidavit in compliance with Section 144. Defendant asserts that he seeks recusal to avoid delays in scheduling which might arise because the undersigned does not ordinarily sit in the District of Colorado. The Court has made numerous trips to Colorado to ...


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