United States v. Smith
2013 U.S. App. LEXIS 1830
| 10th Cir. | 2013Background
- Defendant Derrick Reuben Smith was convicted by a jury of conspiracy to commit wire fraud related to real estate mortgages.
- The district court declared a mistrial as to four other counts and dismissed those counts without prejudice after the Speedy Trial Act violation.
- At sentencing, the court calculated an advisory range of 37–46 months and sentenced Smith to 40 months with restitution of $369,455.54.
- The offenses involved inflated real estate transactions at three residences in the Raintree Acres Addition, linked to the same builder and broker network.
- The district court included the sale of a third residence (7300 NE 133rd Street) as relevant conduct and used foreclosure price minus outstanding balance to compute losses, affecting the loss and restitution figures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal without prejudice was proper | Government argues statutory factors warranted non-prejudice dismissal. | Smith contends prejudice warrants dismissal with prejudice due to Fifth Amendment concerns at sentencing. | Affirmed; dismissal without prejudice proper. |
| Whether 7300 NE 133rd Street was proper relevant conduct | Government asserts it was part of a common scheme with the indicted offenses. | Smith argues it was separate and not part of the conspiracy. | Properly counted as relevant conduct. |
| Whether actual loss was calculated correctly | Foreseeable loss to all lenders; use of outstanding balance minus foreclosure price applies when losses are foreseeable. | Only downstream lenders’ losses should be considered; omit original lenders' losses if not foreseeable. | General formula applied; losses to all foreseeably affected lenders included. |
Key Cases Cited
- United States v. Williams, 576 F.3d 1149 (10th Cir. 2009) (abuse-of-discretion review for dismissal with/without prejudice; prejudice showed by delay and impact on justice)
- United States v. Taylor, 487 U.S. 326 (U.S. Supreme Court 1988) (three-factor framework for dismissals under Speedy Trial Act)
- United States v. Saltzman, 984 F.2d 1087 (10th Cir. 1993) (prejudice requirements for dismissal under Speedy Trial Act)
- United States v. Abdush-Shakur, 465 F.3d 458 (10th Cir. 2006) (prejudice considerations and standard for dismissal under Speedy Trial Act)
- United States v. Fleming, 849 F.2d 568 (11th Cir. 1988) (allocution rights and Fifth Amendment considerations)
- United States v. Torres, 182 F.3d 1156 (10th Cir. 1999) (relevant conduct outside conspiratorial involvement may still be included)
- United States v. James, 592 F.3d 1109 (10th Cir. 2010) (loss calculation when downside lenders exist; collateral approach)
- United States v. Washington, 634 F.3d 1180 (10th Cir. 2011) (loss calculation in fraud cases; foreseeability and method)
- United States v. Griffith, 584 F.3d 1004 (10th Cir. 2009) (relevant conduct under U.S.S.G. §1B1.3(a)(1) and common scheme/plan analysis)