United States v. Zar (Derek)
790 F.3d 1036
10th Cir.2015Background
- Between 2005 and 2006, Jacoby devised a mortgage fraud scheme involving 18 Colorado properties, enlisting sellers, buyers, and investors to inflate prices and launder loan proceeds.
- Derek Zar and Susanne Zar, as buyers, participated in multiple purchases, with Susanne preparing documents and Derek arranging purchases; Jacoby acted as realtor for all transactions.
- Scheme included donations funneled back to buyers to repay down payments and back-to-back sales to disguise loan proceeds; lenders foreclosed on all 18 homes with losses near $3 million.
- In 2007, Jacoby obtained two personal loans and misrepresented down payment sources and income, inflating sales prices and providing an inflated appraisal.
- A federal grand jury charged all three with wire fraud, money laundering, and, for Jacoby, bank fraud; all were convicted after a joint trial, with each facing restitution.
- On appeal, the Zars challenge pretrial rulings (speedy-trial motions and suppression), trial-related rulings (jury instruction and Crawford issues), ineffective assistance claims, and sentencing calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy Trial Act severance/dismissal denial | Zars claim denial violated the Speedy Trial Act. | Zars contend delays from severance and ends-of-justice continuances violated ACT. | No reversible error; delays properly excluded under ACT; severance and dismissal affirmed. |
| Suppression of statements in-home interview | Susanne argues custodial interrogation without Miranda warning rendered statements inadmissible. | Susanne asserts the interview was custodial or coercive requiring suppression. | District court did not err; interview was not custodial, statements admitted. |
| Instruction No. 17 and any omission/amendment | Removal of 'defraud or' and addition of 'or joined a scheme' potentially omitted an element or constructively amended the indictment. | Defendants contend the instruction omitted essential element and broadened the indictment. | No essential element omitted; no constructive amendment; instruction was correct. |
| Confrontation Clause: Crawford issue | Admission of non-testifying co-defendant's statements without limiting instruction violated Crawford. | Susanne asserts plain error; limiting instruction should have been sua sponte given. | Any Crawford error was harmless under plain-error standard; sufficient independent evidence supported convictions. |
| Manager/Supervisor enhancement and variance | District court erred in applying 3B1.1 enhancement and in denying requested variance. | Zar argued insufficient findings and evidence; variance and enhancement were improper. | The district court did not abuse its discretion; 3B1.1 enhancement affirmed and variance upheld. |
Key Cases Cited
- Zafiro U.S., 506 U.S. 534 (U.S. 1993) (presumption in favor of joint trials; severance when substantial prejudice shown)
- Cleveland v. United States, 531 U.S. 12 (U.S. 2000) (interprets 1341/1343 structure; single offense with disjunctive elements)
- Toombs, 574 F.3d 1262 (10th Cir. 2009) (requires record show district court considered ends-of-justice factors)
- Loughrin, 710 F.3d 1111 (10th Cir. 2013) (ends-of-justice continuances; record must support findings)
- Richardson v. Marsh, 481 U.S. 200 (U.S. 1987) (limiting instruction when admitting co-defendant statements)
- Prows, 118 F.3d 686 (10th Cir. 1997) (participation in scheme suffices for wire fraud when joined with intent to defraud)
- Sells, 541 F.3d 1227 (10th Cir. 2008) (constructive amendment and relevant conduct under §1B1.3)
- Sharp, 749 F.3d 1267 (10th Cir. 2014) (de novo review of jury instructions; harmless-error standard for omissions)
- Cassius, 777 F.3d 1093 (10th Cir. 2015) (Alleynes application limited to mandatory guidelines facts; advisory range context)
- Ray, 704 F.3d 1307 (10th Cir.) (Apprendi/Alleyne does not apply to advisory Guidelines calculations)
- Yeung, 672 F.3d 594 (9th Cir. 2012) (restitution offset method rejected; Supreme Court later abrogated)
- Robers v. United States, 134 S. Ct. 1854 (S. Ct. 2014) (MVRA restitution must reflect actual money received from collateral sale)