United States v. Fisher
2015 U.S. App. LEXIS 19620
| 10th Cir. | 2015Background
- Fisher pled guilty (Feb 14, 2014) to one count of filing fraudulent tax returns under a plea agreement in which the Government promised not to bring additional charges arising from the same conduct and agreed to sentencing recommendations, contingent on Fisher’s continued cooperation and acceptance of responsibility.
- The plea required Fisher to disclose assets, submit to examinations, and not transfer assets; the Government agreed not to use new self-incriminating information except as allowed by the Guidelines.
- At an initial sentencing hearing the court delayed sentencing to allow Fisher to explain apparent missing assets; the Government later moved to find Fisher breached the plea by obfuscating asset information and attempting covert transfers.
- The district court initially found Fisher breached, released the Government from the no-new-charges promise, and the Government indicted Fisher (and Lewis) on structuring charges; the court later granted Fisher’s reconsideration motion and concluded he had not breached because the Government had possessed E*Trade records earlier.
- Fisher sought relief at sentencing: release from his cooperation obligations (as his sole remedy for alleged breach) and, separately, a sentence of time served alleging vindictive prosecution; at sentencing the court confirmed the Government would not enforce Fisher’s cooperation obligations, imposed 41 months, and deferred the vindictiveness claim to the separate structuring case; the Government later dismissed the structuring indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by declining to rule on Fisher’s claim that the Government breached the plea agreement by not dismissing the structuring charges before sentencing | Fisher: District court should have ruled; breach requires resentencing before a different judge | Government: Fisher already obtained the relief he sought; issue is moot; appeal waiver/enforceability also implicated | Moot. Fisher obtained the only relief he sought (release from cooperation obligations); breach claim dismissed for lack of jurisdiction |
| Whether the district court erred by declining to rule on Fisher’s claim of prosecutorial vindictiveness and whether that claim warrants resentencing to time served | Fisher: Government vindictively prosecuted him (punishment for refusing to plead guilty earlier, alleged trickery at deposition); requested time served | Government: Claim was inadequately briefed and forfeited in district court; structuring indictment dismissal may moot issue | Not reached on merits. Claim waived on appeal for inadequate briefing and forfeited for failing to press plain-error review in district court |
Key Cases Cited
- In re L.F. Jennings Oil Co., 4 F.3d 887 (10th Cir. 1993) (mootness is a threshold jurisdictional inquiry reviewed de novo)
- Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011) (Article III case-or-controversy requirement)
- Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) (no relief possible means no case or controversy)
- S. Utah Wilderness All. v. Smith, 110 F.3d 724 (10th Cir. 1997) (a claim is moot if the only relief sought has already been obtained)
- Preiser v. Newkirk, 422 U.S. 395 (1975) (federal case-or-controversy standards require concrete, ongoing stake)
- Nixon v. City & Cty. of Denver, 784 F.3d 1364 (10th Cir. 2015) (appellant must explain why district court erred; appellate issues forfeited if not properly argued)
- Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (routinely decline to consider inadequately presented arguments)