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United States v. Johnson

United States Court of Appeals, Tenth Circuit

April 11, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JAMIS MELWOOD JOHNSON, Defendant - Appellant

Page 1195

          Appeal from the United States District Court for the District of Utah. (D.C. No. 2:09-CR-00133-CW-PMW-3).

         Marcus R. Mumford, Mumford PC, Salt Lake City, Utah, for Defendant-Appellant.

         Adam Elggren, Assistant United States Attorney, Office of the United States Attorney, Salt Lake City, Utah (John W. Huber, United States Attorney, Office of the United States Attorney, Salt Lake City, Utah, on the briefs), for Plaintiff-Appellee.

         Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


Page 1196

          PHILLIPS, Circuit Judge.

         Jamis Melwood Johnson was convicted of seven counts of mail fraud, 18 U.S.C. § 1341; nine counts of wire fraud, 18 U.S.C. § 1343; one count of conspiracy to commit mail fraud and wire fraud, 18 U.S.C. § 1349; and ten counts of money laundering, 18 U.S.C. § 1956(a)(1)(A)(i). He appeals the denial of a motion for a new trial, challenges the sufficiency of the evidence, and alleges several instances of prosecutorial misconduct. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. Facts

         On March 18, 2009, a grand jury indicted Johnson on 38 counts of wire fraud, mail fraud, money laundering, and conspiracy to commit wire fraud and mail fraud. It also indicted two co-defendants, Ronald Haycock and Lyle Smith. The charges resulted from a scheme that ran from 2005 to 2007 involving loans based on artificially inflated values of residential properties. The defendants would find sellers whose homes had been on the market for a long time and convince them to enter into a joint-venture agreement (JVA) that would fix the price that the seller would be paid as the asking price of the home. The defendants would then recruit straw buyers with high credit scores, who for a fee would fill out and sign loan applications. The defendants would then alter the information before giving it to the lender by changing the amounts for income, assets, down payment, etc., as well as by stating that the buyers had large cash deposits with Johnson's company, Johnson & Associates. Johnson would then authorize, approve, and verify that the buyers had deposited cash assets with Johnson & Associates, a process known as verification of deposit (VOD), even though he knew that the accounts did not exist. Johnson disputes that he provided the VODs.

         After the lending institutions had approved the fraudulent loan applications, the defendants then would mail closing documents to the mortgage companies. Johnson and the other defendants did not inform the mortgage companies that the buyers were straw buyers, that the buyers had not used any of their own money for the earnest money or down payment, that the buyers would not be living in the home, that the buyers had received a fee to act as straw buyers, or that the loan applications contained fraudulent financial numbers. Once the original mortgage was paid off with the loan funds at the price agreed to in the JVA (the asking price of the home), the remaining money went to the straw buyers, Johnson, and the other defendants.

         At trial, the government produced evidence of a number of transactions following the same pattern. One of the transactions, the Military Way transaction, was the sale of Johnson's home. According to the government, this transaction was unlike the others because Johnson carried out the entire transaction himself, angering his co-conspirators because they were cut out of the transaction and its proceeds. Johnson claimed to be an attorney with a New York City address (Johnson had been disbarred in Utah and Idaho in 2002 and had not practiced in New York in years) and telephone number (which, when called, rang at Johnson's Salt Lake City office) and used a straw buyer who had been involved in other purchases in the scheme. In fact, the New York City address was an apartment where Johnson's son lived.

         For the sale of his own residence on Military Way, Johnson created a false real-estate contract and filled out a false loan application, misrepresenting whether there was a cash deposit and whether the buyer intended to occupy the house, inflating the buyer's monthly income, and noting a nonexistent

Page 1197

cash deposit account of more than $350,000 with Johnson & Associates. Johnson also gave an underwriter a verbal verification of the cash deposit account for $359,739.07. In short, Johnson executed the sale of the Military Way property much like the other transactions involved in the scheme.

         Before trial, Johnson moved for a bill of particulars. The government opposed the motion because it claimed that it had already provided Johnson with over 99% of available discovery. The government stated that it had an " open file" discovery policy. Suppl. vol. 1 at 75. The district court found that policy sufficient and denied the motion. Later, the government turned over a large amount of additional evidence. Johnson asserts that the government provided 11,000 additional pages and 11 additional witness summaries. Johnson has not informed us of how much this additional discovery was relative to the amount already turned over, or when the government acquired this additional discovery material.

         Johnson was released pending trial. As a condition of his release, he was not to procure a new passport (his current passport had expired). The government sought revocation of Johnson's release status after learning that Johnson had applied for an expedited passport through a passport company and planned to travel outside of the United States beginning December 8, 2010, according to an itinerary submitted with the expedited passport application. Part of the government's concern was that it had set a plea-negotiation deadline of December 7, 2010. At a hearing, the magistrate judge found that Johnson had violated the passport condition and ordered him into custody. The judge advised the U.S. Marshal that Johnson is legally blind and that the Marshals needed to ensure that Johnson had access to counsel.

         Johnson appealed his detention to the district court. The government's response included an itinerary from the passport company, showing that Johnson had planned to travel to Mexico on December 8, 2010. Based on the evidence presented, the district court found that Johnson was a flight risk. Johnson claimed the passport company had fabricated the itinerary " for administrative purposes" so he could get the passport sooner. Suppl. vol. 2 at 129. He maintained (and continues to maintain on this appeal) that he had no actual plans to leave the country. Rather, Johnson asserted that a former client approached Johnson to accompany him on a cruise in January " as his companion and aide" because the former client was " in poor health." Id. at 127. Johnson had accompanied the former client on an earlier cruise. Johnson told the district court that the cruise left from San Diego, but he did not reveal the destinations or route. Johnson stated that he told his former client about the need for permission to travel and that his former client had offered to pay for both the cruise and the application.

         Johnson also mentioned the problems that he was having with the visual-aid equipment at the jail. The " large" apparatus could not be operated in Johnson's cell due to insufficient electrical outlets, so to use the equipment Johnson had to go to the lockdown unit. Id. at 107. Johnson did not clarify why that arrangement was insufficient beyond noting that it " would essentially be solitary confinement." Id. at 108. The district court noted the issues Johnson had been ...

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