United States v. Johnson, 2016 U.S. App. LEXIS 6545

Background

Johnson was indicted and convicted of mail fraud, wire fraud, conspiracy, and money laundering arising from a 2005–2007 scheme using straw buyers, joint-venture agreements (JVAs), and falsified verifications of deposit (VODs) to obtain inflated mortgages.
Government evidence included multiple transactions following the same pattern and one transaction (the Military Way sale) that Johnson executed largely alone, using a straw buyer and providing a verbal VOD.
Pretrial and trial events: government produced large discovery; Johnson was detained and later released during trial after issues about an expedited passport and access to visual aids; he was convicted by a jury.
Post-verdict, Johnson filed a timely Rule 33 motion (raising one claim of prosecutorial misconduct during closing). He later filed an untimely second Rule 33 raising additional prosecutorial-misconduct claims, a claim about inability to assist counsel, and a sufficiency claim. The district court considered only the timely motion; denied relief.
On appeal the Tenth Circuit reviewed: (1) whether the district court abused discretion in refusing to consider the untimely second Rule 33 motion, (2) the timely prosecutorial-misconduct claim for plain error review, (3) sufficiency of the evidence challenges, and (4) the money-laundering conviction (reviewed for plain error).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness/waiver of second Rule 33 motion	Johnson argued extensions and delays were justified and the court should consider arguments raised late	Government argued the second motion was untimely and raised new claims beyond the timely motion	Court: no abuse of discretion in treating the second Rule 33 as untimely and waiving the new claims; they were new claims, not mere new arguments
Prosecutorial misconduct (closing statement)	Johnson claimed a prosecutor’s statement during closing improperly appealed to passion and referenced facts outside evidence	Government maintained the challenged statement was supported by trial testimony and objection was sustained as to the final sentence	Court: no plain error; the contested statements were supported by the record and did not undermine fairness
Sufficiency of the evidence for fraud/conspiracy	Johnson argued government failed to prove his knowledge and role in the scheme (e.g., disputed he issued VODs or knew purpose)	Government pointed to testimony and documentary evidence (JVAs, VODs, conduct in Military Way sale) showing knowledge, interdependence, and participation	Court: de novo review — evidence viewed in government’s favor was sufficient; jury rationally found knowledge and interdependence; convictions affirmed
Money-laundering conviction (plain error)	Johnson argued government did not prove he conducted transactions involving proceeds or that he received funds	Government argued §1956 requires the transaction involve proceeds, not prove receipt; evidence supported involvement	Court: plain-error review — no reversible error; elements met and conviction stands

Key Cases Cited

United States v. Custodio, 141 F.3d 965 (10th Cir. 1998) (review standard for district court’s denial to consider untimely Rule 33 motion)
Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995) (party may present different arguments on a properly presented claim)
United States v. Rahseparian, 231 F.3d 1257 (10th Cir. 2000) (evidence of knowledge must be more than suspicion; contrasted with present case)
United States v. Vann, 776 F.3d 746 (10th Cir. 2015) (plain-error framework for unpreserved claims of prosecutorial misconduct)
United States v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009) (standard for reviewing sufficiency of the evidence)
United States v. Wardell, 591 F.3d 1279 (10th Cir. 2009) (interdependence in conspiracy: facilitating the venture supports conspiracy liability)
United States v. Rufai, 732 F.3d 1175 (10th Cir. 2013) (plain-error review applied to unpreserved challenges to money-laundering convictions)