United States v. Thornburgh
2011 U.S. App. LEXIS 10875
| 10th Cir. | 2011Background
- Thornburgh and co-conspirators operated Caribou Capital, promoting false historic and Chinese bonds to investors.
- Investors were told bonds had large accrued interest and backing by Amtrak or the U.S. government, with safekeeping receipts promised.
- Funds were deposited into Caribou’s SunTrust account and spent by conspirators on legal fees, bail, and other personal or project costs.
- Total known investor losses exceeded $4 million, with about $3.8 million laundered through Caribou.
- Thornburgh and Fishman were trial co-defendants; Searles pled guilty; Thornburgh challenged the conviction on several grounds.
- The jury found Thornburgh guilty of conspiracy to commit mail/wire fraud and money laundering; sentencing followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Withdrawal and statute of limitations | Thornburgh claims withdrawal by 7/23/2002 ended conspiracy for SOL. | Thornburgh argues withdrawal created SOL bar; post-withdrawal acts do not restart. | SOL defense rejected; substantial evidence supports continued conspiracy after withdrawal. |
| Proceeds and Santos | Proceeds means profits after Santos; government must prove profits laundered. | Santos controls; instructions should require profits, not gross receipts. | No plain error; proceeds defined as profits only in illegal gambling context; court upheld instruction. |
| Co-conspirator statements | Statements after withdrawal should be admissible under 801(d)(2)(E) if conspiracy exists. | Post-withdrawal statements should be excluded if withdrawal occurred. | Arguments fail; failure to specify statements; admissibility would stand if not offered for truth. |
| Ex post facto/due process | Convicting for pre-enactment conduct violates ex post facto protections. | Due process is violated if jury relies on pre-enactment conduct. | Plain error found but not prejudicial; post-enactment evidence supported conviction; no due process violation. |
| Severance | Severance warranted due to mutually antagonistic defenses with Fishman. | Severance necessary to avoid prejudice. | No reversible error; defenses not shown to be mutually exclusive or prejudicial. |
Key Cases Cited
- United States v. Cherry, 217 F.3d 811 (10th Cir. 2000) (withdrawal can end liability for co-conspirator acts)
- United States Gypsum Co., 438 U.S. 422 (1978) (withdrawal must be communicated to reach co-conspirators)
- Whitfield v. United States, 543 U.S. 209 (2005) (overt acts helpful for limitations and related purposes)
- United States v. Santos, 553 U.S. 507 (2008) (proceeds defined as profits vs gross receipts; context-dependent)
- United States v. Marcus, 130 S. Ct. 2159 (2010) (due process error analysis for pre/post-enactment conduct)
- United States v. Eads, 191 F.3d 1206 (10th Cir. 1999) (co-conspirator statements admissibility framework)
- United States v. Gonzales-Huerta, 403 F.3d 727 (10th Cir. 2005) (co-conspirator statements and conspiracy existence requirements)