United States v. Zar

Summary

The United States Court of Appeals for the Tenth Circuit affirmed the convictions and sentences of Derek Zar, Michael Jacoby, and Susanne Zar arising from a mortgage fraud scheme involving residential properties in Colorado. The court rejected challenges concerning the Speedy Trial Act, severance, suppression of statements made during an IRS interview, jury instructions, confrontation, ineffective assistance, and sentencing.

Holdings

1. The district court did not abuse its discretion in denying the Zars' motion to sever their trial from Jacoby's trial. The challenged delay was excludable under the Speedy Trial Act because motions were pending and because reasonable delay related to a joined codefendant's proceedings was excludable.
2. The district court properly granted the approximately 12-month ends-of-justice continuance, making the 346-day period excludable under the Speedy Trial Act.
3. The in-home interview of the Zars by IRS agents was not a custodial interrogation, so Miranda did not require suppression of their statements.
4. Instruction No. 17 included the essential elements of wire fraud and did not constructively amend the indictment.
5. Even assuming the admission of Derek Zar's testimonial statements without a contemporaneous limiting instruction was plain error, Susanne Zar was not entitled to reversal because she could not establish prejudice.
6. The court declined to address the defendants' ineffective-assistance claims because they were raised for the first time on direct appeal and the record lacked a district court ruling.
7. Apprendi and Alleyne did not require loss amounts or other sentencing facts to be charged, submitted to a jury, or proved beyond a reasonable doubt because the defendants were sentenced under advisory Guidelines ranges and below the statutory maximums.
8. The district court did not err in calculating guideline loss or restitution. The court was bound by Tenth Circuit precedent for the guideline calculation, and the restitution calculation properly used the money received from selling collateral rather than the collateral's value when received.
9. The district court did not clearly err in attributing losses from three properties to Susanne Zar for purposes of calculating her Guidelines sentence.
10. The district court did not clearly err in applying the three-level enhancement under U.S.S.G. § 3B1.1(b) because Derek Zar recruited participants, directed their activities, advised them about properties and grant programs, and connected them with Jacoby.
11. The district court did not abuse its discretion in denying Derek Zar's request for a variance and imposing a low-end, within-Guidelines sentence.

Questions Presented

1. Whether the district court abused its discretion in denying the Zars' severance motion and motion to dismiss the indictment under the Speedy Trial Act.
2. Whether the district court properly treated the challenged periods as excludable delay under the Speedy Trial Act.
3. Whether the Zars' in-home statements to IRS agents were obtained during a custodial interrogation requiring Miranda warnings.
4. Whether the wire-fraud jury instruction omitted an essential element or constructively amended the indictment.
5. Whether admission of Derek Zar's statements violated Susanne Zar's Sixth Amendment confrontation right.
6. Whether the court should address ineffective-assistance claims raised for the first time on direct appeal.
7. Whether judicial factfinding concerning loss amounts and sentencing-role enhancements violated the Fifth or Sixth Amendments under Apprendi and Alleyne.
8. Whether the district court used a proper method to calculate guideline loss and restitution.
9. Whether losses from three properties were properly attributed to Susanne Zar as relevant conduct.
10. Whether the three-level manager-or-supervisor enhancement applied to Derek Zar.
11. Whether the district court abused its discretion in denying Derek Zar's request for a sentencing variance.

Disposition

affirmed