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United States v. Powell

United States District Court, D. Colorado

March 4, 2016

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 Amended Motion For Advisory Counsel And Appointment Of Counsel (Doc. #490) filed November 25, 2015; Defendant’s Motion Requesting CJA Paula M. Ray Be Appointed To Represent Defendant’s Pending 33(b)(l) Motion (Doc. #492) and Defendant’s Motion To Set [] Rule 33(b)(1) Motion For A Hearing (Doc. #493), both filed December 14, 2015; Motion For Reconsideration Of The Court’s November 18, 2015 Order (Doc. #494) and Renewed Motion To Recuse Judge Vratil (Doc. #495), both filed December 21, 2015; Defendant’s Motion For Clarification And Stay of Judge’s November 18, 2015 Memorandum And Order (Doc. #498) filed December 23, 2015; Motion Requesting An Extension Of Time To Timely Appeal The Court’s November 18. 2015 Order (Doc. #499) filed December 24, 2015; Motion For Emergency Appointment of Counsel (Doc. #502) filed December 30, 2015; Motion For Appointment Of Counsel On Appeal (Doc. #506) filed January 15, 2016 and Defendant’s Motion Requesting An Order Directing Counsel Barrett Weisz To Provide Defendant With Hard Copies Of His Attorney Files (Doc. #512) filed February 16, 2016. For reasons set forth below, the Court finds that defendant’s Motion Requesting An Extension Of Time To Timely Appeal The Court’s November 18, 2015 Order (Doc. #499) and Defendant’s Motion Requesting An Order Directing Counsel Barrett Weisz To Provide Defendant With Hard Copies Of His Attorney Files (Doc. #512) should be sustained. The Court declines to rule on defendant’s Motion For Appointment Of Counsel On Appeal (Doc. #506) filed January 15, 2016. The Court finds that the remaining motions should be overruled.

Facts

On January 25, 2011, a 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 in violation of 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 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 related deposit slip. The Inspectors then contacted defendant and he agreed to meet with them. Defendant acted surprised when the Inspectors 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 about 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 authorized mail receptacles, and that the checks were intended to be received and deposited by the intended recipients. The witnesses further testified that defendant did not have any authority or permission to possess the checks or deposit them into 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 into his accounts.

Cheston Foster testified regarding his involvement in defendant’s schemes. Foster pled guilty to a felony regarding his illegal activity, and 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; he told defendant that he did not deposit the check, and then he 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 by opening a bank account at defendant’s direction, purportedly for deposit of social security disability checks, he was an unwitting accomplice to defendant’s fraud.

Tellers and bank investigators 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 (pursuant to a limiting instruction under Rule 404(b)) 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 payors, payees and drawee banks of the forged checks 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 again sentenced defendant to 120 months in prison. See Doc. #437.

On June 11, 2015, defendant filed a notice of appeal. See Doc. #439. On August 7, 2015, through court-appointed counsel, defendant filed a second amended motion to dismiss the appeal, see United States v. Powell, 15-1198 (10th Cir.). The Tenth Circuit granted that motion and dismissed the appeal under 10th Cir. R. 46.3(B). Doc. #460.

On August 10, 2015, defendant filed various motions in this Court: Motion For A New Trial Pursuant To Fed. R. Crim. P. 33(b)(1) (Doc. #483), Motion For Reassignment (Doc. #467), Motion For Appointment Of Counsel And/Or Advisory Counsel [For the Motion To Reconsider] (Doc. #465). On November 18, 2015, the Court overruled the ...


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