Petition for Writ of Certiorari — Bryan Binkholder, Petitioner v. United States
Supreme Court briefApr 25, 2019
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In The
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SUPREME (DURI' OF THE UNITED STATES
>>>>>>>>>>>>>>>>>>>>
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Co Irt,
LED
BRYAN BINKEIOU)ER,
I
Petitioner
OFFICE OF
EE
V.
United States of America
Respondent
•
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
------------
PEfiTION FUR. WRIT OF CERTIORARI
Bryan Binkholder,
pro se
#41868-044
Thomson Federal Prison Camp
P0 Box 1002
Thomson, IL 61285
IN
f1IJ
1. Did the Crime Victims Rights Act, 18 USC 3771 (CVRA), and its 72 hour review
requirement for a petition of Writ of Mandamus violate the Constitutionally
protected 5th & 6th Amendment Rights of the defendant when;
The defendant was not afforded the opportunity to challenge and confront
claims of victimization in the writ which subsequently altered a finalized
plea agreement and increased the defendant's Guideline Sentencing Range
by nearly two years,
Provided no means by which the defendant could challenge and overturn the
CVRA Mandate even as the claims of victimization were documented from the
Record to be misrepresEn tat ions while becoming the focal point of all
future court decisions.
2. In granting a Petition for Writ of Mandamus under 18 USC 3771 CVRA, did
the 8th Circuit Court violate the Jurisdictional time requirements of
18 USC 3771(d)(5) ,and subsequently violate the Defendant's Due Process
Rights?
3. Did the 8th Circuit err when an individual, granted Immunity From
Prosecution in exchange for cooperation, was afforded the same rights
under the CVRA 18 USC 3771 and the Mandatory Victims' Restitution Act
18 USC 3663 as other victims; or should the Court have interpreted the
Immunity Agreement as a form of Co-Conspirator, Un-Indicted Co-Conspirator
or Deferred Prosecution Agreement which would negate restitution and
CVRA rights under 18 USC 3771(d)(1)(a)?
1
LIST OF 'PARTIES
All parties appear in the caption of the case on the cover page.
11
TABLE OF (XXffINS
Cover Page
Questions Presented .............................. ................ i
Listof All Parties..............................................ii
Table of Authorities.............................................iv
Appendix ..........................................................vi
Petition For a Writ of Certiorari.................................1
Opinionsand Orders ...............................................
1
.
Jurisdiction......................................................1
Statementof the Gase...... ........................................... 2
Reasons For Granting the: Petition ....................... . ......... 15
Conclusion and Prayer for Relief..................................32
Certificate of Service and Declaration ............................ 33
Certificateof Compliance.........................................34
111
TABLE OF AUThORITIES
Cases
United States v. Binkholder, 832 F.3d 923 (8th Cir.2016)
United States v Binkholder II, 909 F.3d, 215 (8th Cir.2018)
United States v Green, 718 Fed Appx. 141 (3rd Cir 2018)
United States v. Robinson, 482 F.3d 244, 246 (3rd Cir.2002)
United States v Monzel, 641 F.3d 528 (DC Circuit 2011)
United States v Aguirre-Gonzalez, 597 F. 3d 46 (1st Cir. 2010)
United States v Slovacek, 699 F.3d, 423 (5th Cir.2012)
,:.Uj.jted StatesTv.Thetford, 935 F.Supp.2d, 1280(N.D4 of Alabama, 2013)
Federal Insurance. Co v. Unites Statës 882 F.3d 34& (2nd Cir.2018)
In Re: Allen, 701 F.3d 734 (5th Cir.2012)
United States V. Kohley, 784 F.2d 332,334 (8th cir.1986)
United States v. Crenshaw, 359 F.3d 977 (8th Cir.2003)
Hoffa v United states, 385 U.S. 293, 17 L.Ed 2d 374 87 S.Ct. 408 (1966)
United States v Riggs (in re: WR Ruff Asset Management), 409 F.3d 555 (2nd Cir 2005)
In re: James R. Fisher, 2011 U.S. App Lexis 2300 (5thCir.2011)
In re: Alec Lang, 2018 U.S. App Lexis 10741 (6th Cir.. 2018)
In re: McNulty, 597 F.3d 344 (6th Cir.2010)
In re: Prof'ls Direct Ins. Co, 578 F.3d 432, 437 (6th Cir. 2009)
United states v. FAST, 709 F.3d 712 (8th Cir. 2013)
In re: Kenna,, 435 F.3d .1011 (9th Cir.2006)
United States v. Ati.. States Cast Iron Pipe Co, 612 F. Supp. 2d 453
(D. NJ 2009)
United States v McFarlane, 309 F.3d 510 (8th Cir.2002)
United States V Reifler, 446 F.3d 65, 127 (2nd Cir.2006)
United States v. Weir, 861 F.2d 542, 546 (9th Cir.1988)
iv
United States v Lazarenko, 624 F.3d 12477 1251 (9th Cir.2010)
In re: Welicare Health Plans, Inc., 754 F.3d 1234 1239 (11th Cir.2014)
18 U.S.C. §3771, Crime Victims' Rights Act (CVRA)
18 U.S.C. §3663, Mandatory victims' Restitution Act (MyRA)
18 U.S.C. §1334
18 U.S.C. §1343
28 U.S.C. §1291
28 U.S.C. §1254
OTHER AUThORIES
.
H.R. Rep. No. 108-711, 2005 US.C.A.N.N..
US SENTENCING GUIDELINES MANUAL (2014)
US SEI!ffENCING GUIDELINES MANUAL (2016)
RULES
FRCP 59
FRCP 60
U.S.S.G. § 2B1.1
V
.
.
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M7
)E
Judgment in a Criminal Case of the U.S. District Court for
Eastern Missouri: United States V Binkholder 4:14-cr-00247-RLW
District Court Order Document 102, Dated February 9, 2015
Memorandum and Order in reference to MU victim status determination
District Court Order. Document 237, Dated May 3 2017
Memorandum and Order in reference to MU victim status determination
Document 240-2 submitted as part of Defendant's Sentencing Memorandum
and also admitted as evidence in the Bond revocation hearing of
•
March 9, 2015.
5 Order from the Court appointing Joel Schwartz as CIA attorney on
August 8, 2017
6. Order from the court granting a motion to withdraw as appointed counsel
and for additional time for pro se filing of petition for rehearing.
7 Eighth Circuit order denying the petition for panel rehearing on
January 25, 2019
Vi
PFr1TION FOR A WRIT OF CERTIORARI
The Petitioner, Bryan Binkholder, pro Se, respectfully petitions
for a writ of certiorari to review the judgment of the United States Court
of Appeals for the Eighth Circuit in United States v Binkholder, 832 F.3d
923 (8th Cir. 2016) No. 15-2125 filed on August 12, 2016 and also
United States V. Binkholder 909 F.3d 215 (8th Cir. 2018) No. 17-2688 filed
on November 20, 2018 and Petition for Panel Rehearing denied on January 25,
2019.
OPIIONS AND ORDERS BELOW
The :opinion, of- the, -Court
;Appeals remanding Binolder's case
for further consideration is reported at United States V. Binkholder, 832
F.3d 923 (8th Cir. 2016). The opinion affirming the lower court in the most
recent direct appeal is found at United States v. Binkholder 909 F.3d 215
(8th Cir. 2018). Petition for Panel Rehearing was denied January 25, 2019.
The unpublished Judgment in a Criminal Case of the district court
is reproduced in the Appendix, attached hereto.
JURISDICTION
The Eighth Circuit's jurisdiction was based on 28 USC §1291. Jurisdiction
of this Court is invoked under 28 USC §1254 (a). The Court of Appeals for
the Eighth Circuit affirmed the conviction and sentence on January 25, 2019
with its denial of a Pro Se motion for Panel Rehearing. This Petition is
filed within 90 days of that date pursuant to the Rules of the United States
Supreme Court, Rule 13.1.
1
;
S1KEThlNr OF THE CASE
I. Indictment
August 13, 2014 Petitioner, Bryan Binkholder (Hereafter referred .to
as "Petitioner," "Binkholder," "Defendant"), was indicted on four counts of wire
fraud in violation of 18 Usc 1343, one count of bank fraud in violation of
18 Usc 1334 along with a forfeiture allegation. (Doc. 1).
As relevant, Binkholder and his business partner (referred in court
papers as "M.U.") operated various entities in the St. Louis Area involved in
real estate and hard money lending. Beginning in approximately 2006, the
purpose :p :their companies was to purchase and rehab homes. Binkholder and M.0
initially began by using their own funds (Doc 143). ' To provide additional
capital, M.U. and Binkholder established Private Placement Memorandums under
the rules for Regulation D. Offerings. (MU Evidentiary Hearing Exhibits UB
uc). Most of the investors into the "Hard Money Lending Entities" were
Binkholder's clients from his Registered Investment Advisory Firm (Doc 143.).
M.U. was a client of Binkholder's firm, active partner in the real estate and
hard money lending entities and an investor in the Private Placements. In the
Curriculum Vitale of the offering documents, Binkholder and M.U. listed their
business experience and background for potential investors to evaluate (Doc.
115, Exhibit UA). The companies ended up making 178 loans from 2008-2014 in
the amount of $10,835,742 (Doc. 143). Some rehabbers did however, default on
their loans. M.U. and Binkholder took the properties back and maintained them
as rental homes until such time as they could sell them.
In June 2011, the USPS opened an investigation on Binkholder after
a referral from the Missouri Secretary of States Office--Securities Division.
On December 31, 2011 Binkholder settled with the state via a consent order.
Binkholder consented that he had failed to disclose potential conflicts of
interest and commingled funds across various companies creating a potential
conflict of interest. (Missouri Order Case No. AP-11-29, Secretary of State).
M.U. and Binkholder continued to work together throughout the state
investigation and the USPS investigation. In January 2013, MU negotiated
Immunity From Prosecution in return for cooperation with the government as they
investigated Binkholder. (Doc. 115, pg 79). Binkholder was fully aware of the
Immunity Agreement ad the two continued to work closely together.
Approximately one month prior to the Indictment, MU and Binkholder
had completed the sale of 32 properties to Hamilton Investments through an
owner-financed sale. (Doc. 143).. After Binkholder was indicted, Lis Pendans
were placed on the properties involved in the sale along with other properties
owned by MU and Binkholder. (DÔc 143.).
II. PLEA AGREI11I1ff
On January 8th, 2015, Binkholder pled guilty to the four counts of
'wire fraud while the government agreed to dismiss the bank fraud charge at
the time of sentencing. (Doc. 92). Binkholder agreed that during the course
of the Hard Money Lending Program, he made materially false and fraudulent
representations, promises and material omissions of fact to the investors.
(Doc. 92). In addition, he routinely commingled investor funds across a number
of different accounts associated with Binkholder's businesses. (Doc. 92).
In the Guilty Plea Agreement, the parties stipulated to a number of
enhancements including the number of victims, the use of sophisticated means,
and abuse of trust. (Doc 92). The parties further agreed that restitution
would be determined by the district court pursuant to the MVRA 18 Usc 3663A
along with forfeiture of assets. (Doe. 92, Pg. 14, .16).
Of relevance, the sole area of dispute within the Guilty Plea
Agreement revolved around the role of M.U. (Doc. 92, Pg. 11) The government
contended M.U. was a victim of Binkholder's and his investment of $1,075,000
3
in the various entities should be included in the loss enhancement. (Doc. 92
Pg. 7-8). Binkholder maintained M.U. was an actively involved partner who was
given immunity from prosecution in return for assisting the government. As
such, M.U. should not be considered a victim for sentencing purposes. Per the
plea agreement, the parties agreed to allow the district court to determine if
M.U. was a victim or not "For sentencing purposes." (Doc. 92 pg. 7-8).
If determined by the district court to 'not be a victim for sentencing
purposes, the loss stipulated in the plea--without M.U.-- was approximately
$2,332,969. (Doc 92, Pg. 7) Based on the 2013 Federal Sentencing Guidelines
a .lossof11Million:to$2.5 Million would result in a loss. enhancemet of..
16 levels (USSG 2B1.t(b)(1)(I).: The resulting total offenselevel would be
26 with 3 levels haying been deducted for Acceptance of Responsibility. (Doc92)
If determined to 'be a victim for sentencing purposes' the parties
stipulated that the loss to M.U. was approximately $1,075,000 for a total
loss of $3,407,969. (Doc. 92). This would result in an 18 level enhancement
based on a loss greater than $2.5 Million but less than $7 Million. USSG 2B1.1
(b)(1)(J).(Doc 92). This would result in a total offense level of 28 after the
3 levels deducted for acceptance. Sentencing was set for April 10th, 2015,
although it would later be moved to May 15, 2015. (Plea Hearing 91).
III. M.U. EVIDENTIARY HEARINC --- Victim Status Determination
January 27, 2015, the district court conducted an evidentiary hearing
to determine if M.U. was a victim under the sentencing guidelines (Doc 115).
M.0 testified of his past experience as a sales executive at Ralston Purina
and his many years of working with Binkholder. He admitted he was aware of the
commingling of funds from one program to another which gave rise to the charges
against Binkholder and that he himself engaged in similar conduct to cover
shortfalls. (Doc 115, Pg.85). He also admitted that he had 90% plus decision
4
making when it came to approving loans and that we was solely responsible for
'escrow accounts' which were set up by M.U. to fund repairs on properties in
which their companies lent money. (Doc 115, Pg 31-35). These accounts ended up
being depleted without any work being done on the properties. M.U. admitted
that he had improperly distributed funds and that Binkholder had no access or
control on these accounts. (Doc 115, Pg 647 81). An F.B.I. agent testified
they were notaware of the depleted escrow accounts by M.U. although .they were
aware of his commingling of funds from one program to another. (Doc. 115, Pg 98)
After the hearing, Binkholder filed an additional brief arguing
M:U.should not be considered. a'victirn for: sen tencing purposes' and listing all
of- the:,information revealed at the evidentiary.hearing. (Doc. 101).
IV. DISTRICT axjr DgrERMH1ATION
---
M.U. NOr AVICflM FOR SFNF74CINQ PURPOSES
On February 9, 2015, the district court issued an order finding M.0
was. 'Not a Victim for Sentencing Purposes.' (Doc. 102). The district court
concluded although M.U. may have lost some money through his involvement with
Binkholder, such loss was due to his complicit relationship with Binkholder
and his own involvement in Binkholder' s criminal scheme. (Doc 102, Pg 3-4).
First, he was a clearly
ophisticat businessman and his own
testimony indicted he was aware of the commingling of funds. M.U. himself
admitted to using money from one program to another to fund shortfalls.
Further, although M.U. attempted to distance himself from the programs, his own
testimony belies his blamelessness. (Doc. 102 Pg. 3).
On February 27, 2015, M.U. filed a 'Motion to Intervene' and a motion
to reconsider or in the alternative motion for relief pursuant to FRCP 59 & 60
pursuant to the Crime Victims Rights Act (CVRA 18 § USC 3771).("Motion to
Reconsider")(Doc.1051 106).
As relevant, M. U. 's Motion to Reconsider was the 1st occurrance of the
term CSJRA and its statute, 18§ USC 3771. Until this point, the case was devoid
5
of any discussion of the CVRA. Instead, the Guilty Plea Agreement simply
noted that the parties 'disagree as to whether M.U. is a victim of Binkholder's
scheme.' (Doc. 92, Pg 7). The district court's order of February 9, 2015
holding M.U. was not a victim for sentencing purposes was similarily devoid
of any CVRA language.
On March 3, 2015, M.U. filed a reply in support of his Motion to
Reconsider. (Doc. 108). In this filing he would include new information from
the. Bond Revocation Filing by the government. March 3, 2015, the district
court denied M.U.'s motion noting that "even if M.U. were a victim under the
CVRA, the c.our.t :does,not believe that he has a right to intervene in Binkholders
criminal case." i(Doc 110, ..Pg.1)..., "[In any event,evenif the court were to
allow M.U. to intervene, the Court's decision would not be different." (Doe.
1102 Pg 2).
-
Finalization of Plea A2reeaent and Creation of The PSR
Pursuant to the guilty plea, the sole disputed item of the agreement
had been finalized and MU was not a victim. This resulted in a stipulated loss
of $2,332,969 and a corresponding 16 level enhancement for a loss between
$1 Million to $2.5 Million (2B1.1(b)(1)(I). A PSR was created showing M.U. to
not be a victim and noting MU's testimony from the evidentiary hearing of his
commingling of funds and other involvement in the scheme. Binkholder motioned
for an extension to file replies to the PSR and it was granted. (Doe. 118,119)
Bond Revocation Hearing & Revocation
Around the same time, the government filed a petition to revoke
Binkholder's pretrial release. (Doe. 103). The government alleged Binkholder
.
had tried to sell certain properties ("Hamilton Properties") fraudulently out
from under the governmnet. These properties had been sold one month prior to
the Indictment through an owner-financed sale (Doe. 143, Pg11). Hamilton
was supposed to be making paymnets on the loan but had ceased sometime after
Binkholder's indictment. (Doe. 103, 143). Binkholder testified at the bond
No
hearing that he had approached his attorney who then approached the AUSA
Stephen Casey to undo the sale and work had begun on unwinding it. (Doc. 195)
He testified he had sold three properties since his indictment, all of which
had Lis Pendans on them, using a protocol of bringing legitimate offers to
purchase to the government for approval. (Doc. 195, Pg. 6-7).
Of particular relevance to this Certiorari, in December of 2014,
Kyle Sprysa had contacted Binkholder's realtor about properties he had available
for sale. Sprysa had previously purchased four properties from Binkholder in
December of 2013. (Doc 143, Item 31). Binkholder offered homes from the
as beingufiwound. (Doc:. 195,i
.'HailtonPropert.ies'
bout :hiothntiàl sae on: Décèbe P31, :
2014. Bihkholder described the terms of the proposed deal and wrote "I'm
going finalize it [sic] and give it to Stephen Casey [AUSA] and see if he'd
approve it (doubtful but will try).....I'll forward the info once I get it from
Ray/Kyle." (Doc 240-2, Bond Hearing Exhibit
). M.U. replied one day later on
January 1, 2015 saying "Thanks for update. Have a better year". (Doc. 240-2).
Binkholder was also questioned during the bond revocation hearing by AUSA
Casey (Doc. 195).
On March 12, 2015 Magistrate Judge Noce revoked Binkholder' s bond
based on the grounds his conduct was similar to what he had pled guilty.
Citing the Bond Reform Act, he noted the court must find by Clear and Convincing
evidence that the defendant was not likely to continual criminal acts if
released. (Doc 116).
VII. WRIT OF MANDAMUS iiamON
On April 27, 2015,. M.U. filed a Petition for a Writ of Mandamus under
18 USC 3771(d)(3) of the Crime Victim's Rights Act. (Doc. 128). The petition
came fifty-five days (55) after the district courts denial of M.U's Motion toi
7
Reconsider on March 3, 2015. New claims of victimization were included in
the Writ of Mandamus. Specifically, M.U. claimed that "Binkholder has taken
additional steps to victimize M.U. because the conduct that precipitated the
revocation of Binkholder's bond was Binkholder's attempt to sell [properties
in which MU had a financial interest] without informing MU." (Doe. 128 Pg 18-19)
This was shown from the record and exhibit during the bond hearing
to be contrary to the evidence produced and admitted into hearings by binkohider.
Under 18 USC 3771(d)(3), the Appellate Court took up the Writ of Mandamus and
decided within' 72 hours. On April 30, 2015, the Court issued a Mandate
directing the district court to vacate its February 9, 2015 order and to enter
an order, recognizing M U as a crime victim pursuant to the Crime Victim's
Rights Act 18 USC 3771. The Judgment was issued a day before on April 29,
2015. (Doc. 129, 130). The district court then vacated its previbus orders.
of February 9 and March 3, 2015. (Doe. 131).
VIII.
Sentencing Hearing
A new PSR was created pursuant to the CVRA Mandate and order.
Binkholder's sentencingguidelines range increased by 2 levels due to the
inclusion of M.U. as a victim for sentencing. This represented a loss between
$2.5 Million to $7 Million when including M.U.'s $1,075,000.(2B1.1(b)(1)(J)
The revised PSR calculated a total offense level of 31 which did not include
a 3 level reduction for acceptance of responsibility due to the bond revocation.
With a criminal history of Category I, Binkholder's advisory guideline range
was now 108-135 months as compared to the 87-108 prior to the M.U. Mandate
and 63-78 months prior to the loss of acceptance.
Binkholder objected to the inclusion of M.U. for sentencing purposes.
Regarding M.U. the district court '[stood] by the 8th circuit decision' and
included M.U's investments in the loss enhancement.(Doc. 156, p9.). Ultimately
the district court sentenced Binkholder to 108 months followed by 3 years
8
supervised release and ordered him to pay $3,655,968.89 in resitution which
included $1,205,000 to M.U. and $274,000 to Bank of Ainerica(Doc. 156).
A timely appeal followed. (Doc 148).
Initial Appeal
---
Binkholder I
On January 4, 2016 Binkholder filed his appellant brief arguing six
issues. Concerning M.U. and the CVRA Designation, Binkholder argued the Plea
Agreement was a defendant-centric question focusing on Binkholder's culpability
and it revealed the parties disagreement on M. U. 's involvement and complicity.
The CVRA was a victim-centric inquiry focusing on victim's rights and voice
rights predorninatlywith a clause for restitution.- (Appe'llant.Brief 15-2125).
•...;:,..,;
itho.lder alspdirected• L .the Court.! sattentionto the Record and
MU's misrepresentations of continued victimization by Binkholder in his Writ
of Mandamus Petition. (Appellant Brief 15-2125 Pg. 33 Footnote 3).
"MU additionally misrepresented in his etition for writ of mandamus
the evidence adducced at Mr. Binkholder s revocation of bond hearing.
In ftW.s petition, he accuses that Mr. Binkholder "has taken
additional steps to victimize [M.U.] because the conduct that
precipitated the revocation of Mr. Binkholder's bond was Mr.
Binkholder's attempt to sell [properties in which M.U. had a
financial interesti without informing [M.U.]." (citing Doc 128,
pg 18-19). However, this arguement is wholly repudiated by the
evidence at the bond revocation hearing that included an email from
Binkohlder to M.U. specifically discussing the possibility of that
sale. (Doc. 195)
Appeals Court Judgment
On August 12, 2016, the 8th Circuit Court issued it's opinion finding
that the April 29th decision by the Court determining M.U. to be a victim
pursuant to the CVRA 18 USC 3771 did not require that M.U. also be a victim
for sentencing purposes. "The determination of who is a victim under the CVRA
is not necessarily dispositive of who is a victim under the Sentencing
Guidelines." United States v. Binkholder 832, F.3d 923 (8th Cir., 2016).
The Court recognized that its previous mandate resolved the question of M.Us
victim status for restitution. The court held, however, that the case should
be remanded for further consideration of whether M.U. should be considered
..
a victim of Binkholder's scheme for purposes of sentencing. "[T]he district
court appears to have concluded at sentencing that our Mandate requiring the
[district] court to recognize M.U. as a crime victim pursuant to the CVRA also
required it to find M.U. was a victim for Guidelines purposes." ID.
In dissent, Judge Gruender wrote that he felt if one is considered
a victim under the CVRA then they must also be
victim for sentencing purposes.
In speaking of the term ictim', he wrote that the "CVRA appears to provide
the narrower definition". (ID, Pg 16). "[A] finding that a person is a victim
under the CVRA's narrower definition necessarily requires finding that the
the apparently broader.defiiitio:th:th'e
pe
Guidelines.".(ID,..:pg. 16)......................
.
..
.:.
Remand and. Victim Intervention
-
On September 15, 2016 the district court ordered the parties to
submit briefings as to whether MU was a victim for sentencing purposes. DOC. 202
The parties submitted briefs. (Doc. 203, 204, 205). On December 30, 20161
nine of Binkholder's victims moved to be heard through their counsel, James
Bick ("Bick"). They requested a modification of the restitution order. (Doc 210)
Citing MUs complicity, the victims, argued that there were threee types of
victims and each should be treated differently in terms of priority for
restitution. They viewed MU as complicit in Binkholder's scheme and his Immunity
From Prosecution in return for assistance as evidence that he was more of a.
Co-Conspirator than victim. (ID).
On March 15, 2017, MU agreed to the Subordination of his restitulon
claims. (Doe. 222). On April 4, 2017, the district court delivered its opinion
that the Victim's would receive priority restitution followed by Bank of
America and M.U. (Doe. 227)..
District Court Victim Determination of M.U.
On May 3 1 2017, the district court issued a Memorandum and Order
finding that M.U. 'was a victim for sentencing purposes.' (Doc. 237) The
10
district court concluded that the 'unrebutted evidence' showed that"MU.'s
money was used to further Binkholder's scheme, without the knowledge of M.U."
(Doc 237, pg5). The order noted Binkohider's filing failed to cite any evidence
to support his contention that MU was not a victim other than the district
court's February 9 2015 order. (Doe 237 pg5). "Thus, this [district] Court's
February 9, 2015 Order cannot constitute evidence to support Binkholder's
position." (ID). The reason for this was the order had been vacated by the
8th Circuits CVRA Mandate on April 29, 2015.
The district court took the additional step of basing its decision
-on,,
judges opinion ftóth'
th
A's narrower
definitin df :victim, the [district] Court 61& that: M.U. 'thu
éivitirn'
under the broader definition of a victim in the Sentencing Guidelines." (ID)
(Fmphasis added). No new evidence was submitted to make this determination.
The sole evidence were the briefs and the MU Evidentiary Hearing from 2015..
(Doc 203, 204, 205, 115).
XLII.
-
Resentencing After Remand
Both Binkholder and the, government filed sentencing memorandums prior
to resentencing. (Doc. 240, 241). Binkholder argued that. the district court
should use the 2016 Sentencing Guidelines which were revised 5 months after
the defendant's original sentencing in May 2015. These changes would afford
Binkholder a 2 level reduction for the loss enhancement whether MU was
considered a victim or not. He also argued for acceptance of responsibility
for his assistance with the victims and their attorney. This included
transferring $3,417,547.68 in company assets to a victim's trust. (Doc. 234-2)
Attached to the memorandum was a letter from victim's attorney Bick describing
the efforts of Binkholder to assist the victims. (Doc 240-1). Also included
was the email from Binkholder to MU alerting him of the potential sale of
properties which he had claimed in his Writ not to have known of. (Doc 240-2).
11.
'
At sentencing, Judge White again sentenced Binkholder to the same
108 months and declined to use the n'ew 2016 Sentencing Guidelines. A timely
appeal followed.
As relevant, Binkholder's attorney, 'Joel Schwartz was unaware of the
May 3, 2017 order recognizing MU as a Victim. This was learned by Counsel and
Defendant at resentencing on May 8 2017. Due to this, Counsel was unprepared
to object and argue many of the issues of MU, the CVRA/MVRA; and other issues
of importance found in this Writ of Certiorari. (Doc 270 pg 3).
XIV. Subsequent Appeal-- Binkholder II US v Binkholder 909, F.3d, 215 (8thCir)
In Bin- kohider's subsequent appeal, he argued the district court
had erronously determined the victim status of MU when the district court
wrote that MU Must be a victim since the CVRA was narrower in determining the
status of a victim. The case had been remanded to determine if MU was a victim
under the guidelines and as such, if MU 'Must be a victim' the Court would have
never needed to return it to the district level. (Doc 17-2688 Appellant brief).
Of relevance, oncé.again Binkholder also argued the Record showed
information within the Writ of Mandamus to be fraudulent and his claims of
victimization attempting to sell properties without MU's knowledge were proven
to be untrue. Binkholder also challenged the restitution being paid to MU due
to his involvement and Immunity Agreement with the Government noting MVRA Case
law of co-conspirators. (Doc Appellant Brief 17-2688).
The government filed its brief arguing Judge Gruenders view that
the victim definition under the CVRA was narrower and thus MU had to be a victim
for sentencing purposes was correct (AppellateBrief 17-2688). !Judge White
[district court] had reasoned that MU must be a victim under the broader
definition in the sentencing guidelines given this Court's [8th Circuit]
mandated MU Victim Status under the CVRA.' (ID).
On Novermber 20, 2018 the 8th Circuit affirmed two parts of the
decision while it refused to hear two other arguments. As to MU, the Court
12
noted that "We did not-describe the CVRA definition of a victim as narrower
than the guideline definitions. Nevertheless, we do not believe the [district]
courts ultimate decision--that MU. is a victim under the guidelines--was
erronous." (Binkholder II, 909 F. 3d, 215 (8th Cir, 2018).
XV.
Binkholder Pro Se Petition for Panel Rehearing
On December 4, 2018, Binkholder and his previous counsel disagreed
on various issues including not arguing violations of CVRA rules. Counsel
agreed to remove himself along with requesting more time for Binkholder to file
a request for a panel rehearing. This request was, approved and a new deadline
set..for.January.4, 2019...
•,.
.•.
Binkholder filed his Pro Se motion asking the court to consider some
of the legal issues missed and misconstrued. Binkholder argued that statute
requirements for filing petitions of Mandamus Relief were violated by MU and
missed by the Court and his counsel. Per 18 USC 3771(d)(5), Limitations on
Relief; Binkholder noted the requirement that a writ of mandamus must be filed
by a victim within 14 days' of being denied in the district court if they are
seeking-to re-open a plea. Since MU's writ and mandate altered Binkholder's
finanlized plea and. increased his Federal Sentencing Guideline range by nearly
two years, MU had re-opened his plean. Having filed his Mandamus Petition
fifty five days (55) after being denied in district court on May 3, 2015, this
was an obvious procedural error.
Binkholder once again challenged the'Fraud withing the Writ' by
again alerting the Court to the Record and the email to MU from Binkholder
alerting him of the very sale he claimed in his writ to have no knowledge of.
(Rehearing Petition, Doe 240-2). Binkholder also challenged the lack of due
process and rights to confront his accusser and challenge the writ of mandamus.
In not affording him of Due Process Rights and 6th Amendment Confrontation
rights, Binkholder argued he was subjected to a longer prison sentence due
13
to the increase in his sentencing guideline range from MU's inclusion. Lastly,
Binkholder argued that the CVRA determination by the Court voided his plea
agreement because the parties never contemplated the CVRA Designation and a
third-party being able to disturb the plea made between the Government and
Binkholder.. Using the May 3, 2017 district court order, Binkholder suggested
Judge White never considered the facts that led him to his decision two years
earlier that MU 'was not a victim' but instead looked to the CVRA determination
as the main determinator. In Binkholder's view, the CVRA had become the Focal
Point by which all decisions had been made in this case.
Ono-January. 25,., 2O9,.the Court. denied Binoldr'sreqnest fOr
Fhrury
This certiorari now follows pursuant to 28 USC §1254(a). This certiorari
is being filed within 90 days of denial by the 8th Circuit Court of Appeals
and the petition for a panel rehearing on January 25, 2019.
Bryan Binkholder filing Pro Se is a prisoner in the Federal system
currently located at Thomson Federal Prison Camp ID 41868-044. As such,.
piles for prisonsers confined, in an institution apply and are being followed.
14
-,
REASONS FOR GRANTING THE PETITION
Petitioner prays the Court will address important and compelling
legal questions of the Crime Victim Rights Act 18 USC 3771 which are found
within this Certiorari. Petitioner is unaware of any challenges to this Court
concerning the CVRA, however this case has set precedent in areas which
substantially violate constitutional rights of the accussed. While circuits
are split on the issue of standard of review for mandamus petitions, no court
has ruled or decided on issues concerning a Mandamus Petition altering a
:defendant's finalized plea and, increasing the def endants Guideline Setitencing.
R ge.
an
..
,
.
.•
.
.
C....
Only the 9th Circuit in Kenna and the 8th Circuit in this case have
even addressed the 72 hour review requirement of 18 USC 3771(d)(3) and its
implications of Due Process Violations. They have both, however, varied in their
approaches. In regards to the Limitations and Enforcemnt of the statute,
18 USC 3771(d)(5), the Act has jurisdictional time requirements which wer€
violated by MU when he filed his Writ outside of 18 USC 3771 (d)(5) rules.
Finally, the Petitioner requests the Court decide how the courts
should view a individual given Immunity from Prosecution who admits complicity
in the defendants scheme but is allowed to seek restitution via the CVRA/MVRA.
Case law is non-existent when it comes to Immunity Agreements and how Courts
should view these contracts. While the CVRA states that "[A] person accussed
of a crime may not obtain any form of relief under this chapter [section],"
in this case the court allowed MU to still attain rights under the CVRA and
the MSJRA. See 18 USC 3771(d)(1)(a). The Petitioner prays this Court reviews
the 8th Circuit's Opinions along with the case law from various circuits and
grant this Certiorari request.
15
Due Process rights of the 5th Amendment and 6th Amendment Rights to
confront your. accusser are Constitutionally safeguarded rights of the accussed.
Many times in the past, the courts have victims of crimes as silent bystanders
with no rights. With the creation of the CVRA in 2004, Congress attempted
to give Crime Victims rights to be a part of the process and to have their
voices heard.
The CVRA, Pub L. NO. 108-405, 118 Stat 2261
(codified at 18
USC 3771) is part of the Justice for All Act of 2004. Originally there were
eight rights of which all were voice rights to be heard, except for.the right
to restitution See 18 USC 3771(a) These rights include rights to be heard,
,.rights tobe protected jrIght:s.to.,,.a part.of the process rightto: be , treated fairly and rights to be informed. On May 29, 2015, the statute was amended and
two additional rights were added which included the right to be timely informed
of a plea bargain or deferred prosecution agreement and rights to be informed.
See 18 USC 3771 (a) 1-10.
Petitioner notes that in a review of cases on the district and
Appellate level, most cases and Mandamus petitions revolve .around being heard
at sentencing and submitting victim impact statements. Courts have ruled since
the implementation of the CVRA that those two items do not violate a defendants
rights and a defendant does not have a right to confront their accusser in the.
sentencing context not their Impact Statements. United States vGreeri, 718
Fed. Appx. 141, (3rd Cir., 2018)(while not subject to confrontation or due
process rights [victim impact statements] still must have some 'minimal
indicium of reliability'beyond mere allegation to be admissible at sentencing)
United States v. Robinson, 482 F.3d 244, 246 (3rd Cir.2007)(Both the supreme
court and this court of appeals have determined that the confrontation clause
does not apply in the sentencing context).
Petitioner thoroughly agrees that the CVRA was and is an important
act for victims rights and the Criminal Justice System. Just like many laws,
16
however, good intentions meet reality and produce a concoction of unexpected
results. It is the courts duty to reign in laws that violate Constitutional
Rights. In this case, a law designed to provide crime victims with the rights
to be heard and other "voice rights" has instead produced a result contrary
to established Constitutional Rights and Due Process. This was done when a
Third-Party (non-party in court decisions), was allowed to intervene and disturb
a finalized plea even as it violated the time requirements of 18 USC 3771(d)(5).
The courts have consistently ruled that Victims' are a non-party
and cannot intervene in a criminal case. Nor are they allowed Appellate Rights
ev.fôT:restitutidnhich is pied natly ô red b1 USC, 3663 )
•:S6 Unitéd.StatesVMoe 641F3d 5281 (DC Ciriit0l1);
Aguirre-Gonzalez 597 F.3d 46 (1st Cir,2010).
A.
.
As such, a"Writ of Mandamus is
a crime victim's only recourse for challenging a restitution order." (Quoting
Monzel at 540.
These rules for advancing a Petition of Writ of Mandamus, however
do carry requirements on the part of the victim who is asserting their right.
As speiledout under the "Limitation of Relief" of 18 USC 3771(d)(5):
(5) Limitation on Relief. In no case shall a failure to
afford a right under this chapter [section] provide
grounds for a new trial. A victim may make a motion
to re-open a plea or sentence only ifthe victim has asserted the right to be heard before
or during the proceeding at issue and such right was
denied;
the victim petitions the court of appeals for a writ
of mandamus within 14 days; and
in the case of a plea, the accussed has not pled to the
highest offense charged.
This paragraph does not affect the victims right to restitution
as provided in title 18, United State Code
Courts have continually noted the importance of the time requirements
of 18 USC 3771 because of the myriad of issues involved in a criminal case.
The courts in United States v. Siovacek 699 F.3d, 423 (5th Cir.2012), and
Aguirre-Gonzalez have specifically pointed out the 14 day requirement. In
17
fact, the Aguirre-Gonzalez court pointed out the importance of time requirements.
"The CVRA plainly evisions that crime victims' petitions challenging
a denial of their rights will be taken up and decided in short order
It requires expeditious consideration by the district court, quick
appellate review, and provides that a victim may not move to disturb
a defendant's plea or sentence unless, among other things, "the
victim petitions the court of ap?eals for a writ of mandamus within
14 days' of denial of the victim s motion in the district court.
Citing 18 USC 3771(d)(3), 3771(d)(5).
While the Aguirre-Gonzalez court took the position that the 14 day requirement
was after denial by the district court, the District Court in Northern District
of Alabama, Southern Division in United States V. Thetford, 935 F. Supp. 2d
1280, 2013 U.S. Dist Lexis 45751 took it even further by denying a victim's
assertion of their rights iin the district court citing 18 USC 3771(d)(5) but
ruling that since the plea was finalized on March 111 2013 and the crime victims'
attempt to re-open the plea came 18 days later on March 29 it was outside the
time allowed for a victim to re-open a defendants plea per 3771 (d)(5).
"[S]he did not assert and
?have denied her right to be heard
at the plea hearing; she d1dOfnot petition the court of appe1 for
mandamus within 14 days of March 11, 2013."
Thetford, 935 F. Supp. 2d 1280, US Dist. Lexis 45751
While denying the victims request to "re-open the plea" the court still granted
voice rights and restitution under 18 USC 3771(a). "Although not entitled to
have the plea re-opened, the Winsletts are still entitled to certain rights
under the CVRA." ID.
Recently in Federal Insurance Company v United States 882 F.3d 348
(2nd Cir.2018) the court there also noted the 14 day requirement for a victim
to petition the court of appeals for CVRA rights. They took a totally different
view of the courts in the 1st and 5th Circuits by viewing the 14 day requirement
of 18 USC 3771(d)(5) to only deal with re-opening a plea or a sentence. While
they ended up sidestepping the issue and using another means to rule on the
Mandamus Petition, they seemed to view "restitution rights" as not controlled
by the 14 day filing timeline under the act. They noted that since the MVRA
Im
controls the restitution process and since it is mandated to be done at
sentencing or within 90 days of sentencing Congress must not have intended
the 14 day requirement to petition the court via a writ of mandamus to apply
to restitution claims. ID at 360.
Regardless of how this Court would interpret the statutory rules of
18 USC 3771(d)(5), the fact remains the 8th Circuit clearly errored and violated
a jurisdictional time requirement when granting MU's writ. The plea agreement
Petitioner• entered into with the government was accepted by the district court
on January 82015 (Doc 92). The sole disputed item of the plea was the victim
status d
iminati.on of :MU. Being a: co-equal businés patner of Binkholdér' s
f6. ndal 10 year s; the Petitioner viewed MU as a Fully complicit partne
who had done the vary things that he had been charged with doing. The mere
fact that. the government had granted MU Immunity From Prosecution spoke for
itself. If.MU wasn't guilty of crimes, then why the need for Immunity? On
the flipside, the government claimed he was a victim. The two parties began
in November 2013 discussing plea options and the entire dispute revolved around
the loss amount and je status of MU. The government even of f erred inducements
for Binkholder to plead guilty "IF" he. would accept MU as a victim. Binkholder
rejected these offers and eventually he was indicted. Even after indictment,
Binkholder's counsel negotiated . 2 plea agreements. One with a "hard 26 points"
which would include MU as a victim and restitution to him in the full amount
of atleast $1,075,000 but only $130,000 would be included for the Loss enhancement thus resulting in a loss between $1 Million to $2.5 Million and a 16 level
enhancement. Binkholder refused this and instead opted with the Plea Agreement
he entered into that left the determination up to the district court and the
potential for a higher Sentencing Guideline Level if the district court ruled
in favor of MU.
Binkholder would have never entered into such an agreement if he
had known that there was no way for him to win the status determination of MU.
19
With the plea agreement being accepted by the district court on January
8, 2015, an evidentiary hearing was held on January 27, 2015 to determine the
status of MU for the purposes of sentencing. 0n.February 9, 2015 the district
judge issued his order that MU 'Was not a victim for sentencing purposes.'
(Doc 102) At this point the plea became "finalized" and pursuant to the
plea agreement the loss enhancement would be 16 levels for a loss of
$1 Million to $2.5 Million. See 2B1.1(B)(1)(J)
While upuntil this point there has never been any discussion of the
CVRA and the plea, plea colloquy and hearing are void of such language; even
if one to be, persuaded the. term "victim", in the plea could include• the VRA's'.
definition. orthe,MVRA's:then'-the proposition fails because of 18 USC,377i :
violations under (d)(5).
Taking the courts view in Thetford , the plea was finalized on February 9, 2015 and MU's Motion to reconsider wasn't filed until March 3. This
is well outside the 14 day rule. Even if what most courts have considered the
standard that once a victim is denied in district court they have 14 days to
petition the appellate court in order to re-open a plea or sentence,the
proposition also fails. See In Re: Allen 701 F.3d 734 (5th Cir,2012); (the
only time limit described in the statute applies when a victim seeks to reopen
a plea or sentence).
When MU was denied his Motion to Reconsider on March 3, 2015 the
18 USC 3771(d)(5) clock began for his 14 days to petition the Court. This was
especially true since in seeking to be ruled a victim, it would "re-open"
Binkholder's plea and subject him to a higher Federal Sentencing Guideline
Range. By filing his writ of Mandamus on April 27 2015, he obviously was
well outside the window, allowed under 3771 (d)(5).
One may argue MU was only fighting for CVRA rights pertaining to
restitution since it was mentioned multiple times along with the MVRA which
deals with restitution. If this 'is the case, then in granting the Mandamus
20
the 8th Circuit should have ruled as other circuits and denied the CVRA writ
but written for the court to decide for MVRA purposes--which was already in
the plea agreement. MU already had voice rights since he was under an Immunity
Agreement and there was no
mention of 'reopening the plea' in his Mandamus
petition. Zero. Either way this order should be vacated by this Court due to
either Jurisdictional time violations under 3771(d)(5) or if this Court were
to view his writ as purely for restitution and not to be held to the 14 day
requirement as the court in Federal seemed inclined; the. Peitioners Plea
was disturbed and should be reset to its place prior to the MU writ.
Due Process and Confrontation Clause Violations
iBesides the time violations of 3771(d)(5), an entire pandora's box
has opened up because the Writ contained misrepresentations that have been
proven from the Record itself to be false (doc. 240-2). The Petitioner has tried
in every subsequent direct appeal and resentencing to direct the courts to
the misrepresentations and obvious fraud within the writ. The problem appears
to be there exists no means of review once a Mandate has been issued. for the
CVRA. With only 72 hours to review under 18 USC 3771(d)(2), the defendant's
due process rights and 6th Amendment rights to confronting his accusser were
violated. In fact, the 8th Circuit appears to have even decided this writ in
48 hours since it was filed April 27th and decided April 29.
Petitioner understands that the saying "Fruit of a Poisenous tree"
refers to search and seizure laws, however, the visual fits appropriately in
this case. Every decision reached from Petitioners sentencing in 2015,
Binkholder I in 2016, Resentencing in 2017 and Binkholder II in 2018 have all
been viewed through the lens of the CVRA Mandate. One need not look any further
than the district court's determination in 2017 that MU was a victim. The
Judge wrote, "MU must be a victim".
"Moreover, the Eighth Circuit has already determined that MU
is a 'victim' under the CVRA.....Given the CVRA's narrower
definition of a victim, the [district] Court holds that MU
must be a victim under the broader definition of a victim in
21
the Sentencing Guidelines." (Doc. 237, Pg. 5). Emphasis added
When given the opportunity during a full day hearing on January 27, 2015,
Binkholder showed MU to be involved in the very acts he was charged with and even
more. Binkholder's filing after the hearing evisorates the idea that MU was
a victim. (Doc. 101).
MU was aware of the commingling of funds from one program to another
and participated in it. He had extensive investment and Business evaluation
experience that transcended his involvement with Binkholder (Doe 101, #18)
He alone controlled escrow accounts meant for rehabbing homes that were only
W. havè:'fund
•t:werdepl ted.wthot o.rk.bèin.omletéd. Helàne 'Cohtolld these 'accounts
so it could not be blamed on binkholder. The FBI also was cross-examined and
testified that they were not aware of the escrow account missing funds. (Doc
lOiltems 29-31). The veracity of MU's claims and truthfulness were also
questioned in the hearing. He testified he took a loan out on his own home
in order to raise capital for the cmpany but later under cross examination MU
"remembered" that the funds, were actually used to fund ,a cash-value' life
insurance policy with a $2.9 Million dollar death benefit and cash value
accumulation for retirement. This was for him and his family. (Doe 101, 49, 50).
The mortgage on his house to fund the policy was then paid for by a "salary"
from one of the companies in the exact amount of his mortgage. Ironically,
the Petitioners own home went into forclosure in 2012' so the companies were
obviously not paying his mortgage. (PSR 143).
Yet when MU filed his Writ of Mandamus, the petition was cherry
picked with examples without including the cross examination or other information.
As noted, it also included the new claim of victimization (Doe 128, pg 18,19).
Included in the Case Setting are the details of the claims which revolved
around Binkholder supposedly attempting to sell properties out from under MU.
22
Binkholder was unable to point out to the Appellate court that the truth of
the issue was found in the bond hearing and AUSA Casey's own questioning of
Binkholder on an email sent from Binkholder to MU concerning the sale in question.
(Doc 195). Confounding the situation more, MU submitted only the exhibits
of the governmnent and did not include Binkholder's exhibit at the hearing
which was the email alerting MU of the sale. (Doc 128, exhibit list).
Binkholder included this entire email in his Petition for Panel Rehearing on
January 4, 2019 but again, the Appellate Court has never written or ruled on
the Fraud within the writ that he has continually pointed out.
ghout,the case,
; :ti
inoder'häs attempted to':
e Process rights;,to-, confront the..isrepresentations in thewrit...In
Binkholder I in his appellant brief he spelled out the misrepresentations as
was highlighted in the Statement of The Case. (Appellent Brief 15-2125 pg.33)
In Binkholder II he once, again cited the fraudulent statements within the
writ. (Appellant Brief 17-2688 Pg. 18). The court never addressed the
elephant in the room and never addressed the Due process concerns they had
expressed in Binkholder I,, Footnote 4. As Petitioner will expand upon, the...
writ of mandamus is an extraordinary remedy. By granting the writ, the court
altered the defendant's plea. The defendant's basic right to confront his
accuser and their claims was granted in the MU Evidentiary Hearing, however
now in the writ, this right was violated. The 8th circuit ironically in
United States V. Kohley 784 F.2d, 332,334 (8thCir, 1986)(per curiam) wrote:
"The Due Process Clause of the Fifth Amendment is implicated when a
sentencing court considers evidence that the defendant had no
meaningful opportunity to rebut and only then when that
consideration results in a sentence based on material misinformation."
How much of the one-sided arguments in ,the writ moved the Judges one will not
know. Was it the misrepresentations made of the new claim of victimization?
Again, one cannot say. for sure but the result is obvious. Faced with a 72
hour requirement to decide, the court took 48 hours and issued their ruling.
The 'district court, on the otherhand, experienced a full day hearing and then
23
ruled 13 days later. This Court is asked by the Petitioner to examine the
procedural requirements of 18 Usc 3771. Did the 8th Circuit know about the
Immunity Agreement that MU acquired? Did they understand and even know that MU
was the sole disputed item--- in the plea agreement? Obviously, 72 hours or this
courts 48 hours didn't allow them to fully understand the Record. Were they
even able to review the MU Evidentiary Hearing Transcript?
"The established safeguards of the Anglo-American Legal system leave
the veracity of a witness to be tested by cross-examination, and
the credibility of his testimony to be determined by a properly
instructed jury." United States V Crenshaw 359 F.3d, 977 (8th Cir
2003) citing Hoffa V. United States, 385 U.S. 293, 17 L. Ed. 2d
374, 87 S.Ct. 40 19bb).
lnconsistentcy of. testimony on'issues of facts and outright contradictions in
tti!1 nny are important fora defendant in challenging Witness testimony-especially when an accusser has been granted Immunity From Prosecution. The
8th Circuit in Crenshaw
d;the Supreme Courts findings in Hoffa:
"Testimony does not become legally unsubstantial because the witness
stands to gain by lying; the defendant is entitled to cross-examine
such witnesses to expose their motivations, and it is up to the
jury to decide whether the witness is telling the truth despite
the incentive to lie."
The district court had heard and observed all of-,- - the testimony of MU during the
full day hearing along with the FBI agents cross-examination. The district
court heard the FBI ,agent claim that nothing in their investigation pointed
to MU's using investor funds for himself (Doc. 115, pg 96 1-11). However,
the district court also heard the FBI testify they were totally unaware of
the missing money from escrow accounts that only MU had access to and was
only to be disbursed after rehab construction had taken place. (Doc 115, Pg .
64 In 11-24, Pg. 81 Ln 4-20, Pg.98).
This is why Apellate Courts have written that the District Court
is best suited for determining CVRA rights. The 2nd Circuit in United States
v. Riggs (in re: WR Huff Asset Management) 409 F.3d, 555 (2nd Cir.2005) noted,
"[T]he district court is in a better position than an appellate
court to decide whether or not relief is warranted under the .CVRA,
and whether the settlement agreement is appropriate as it has far
24
more insight into the complexities of a pending litigation than
a court of appeals."
The Fifth Circuit in denying a Writ of Mandamus in In re: James r. Fisher
wrote that they "will not reweigh these arguments in our deferential review,
but rather note that these are premissible reasons [citing the district courts
rejection of rights]." In re: James R. Fisher,(5th circuit, 2011), Lexis
26500. Fisher's argument was also pertaining to a plea agreement and certain
agreements the government and defendant had made. Most interesting, the court
pointed out that the district court had "heard the evidence" and that they did
not "make a clear and indisputable error." ID.
H
6th Circui± in. re: Alec. hg'6th'.Cir.. 2O18), 2018.S.
App Lexis 10741
-
o' that in ruling on a writ of mandamus pursuant to
the CVRA, that they should look to the guilty plea and any agreements. Citing
the case., In .reMcNulty 597 F.3d 344, (6th Cir.2010)(was convicted pursuant to
a guilty plea rather than by a jury, the court should look to the plea agreement
the plea colloquy, and other statements made by the parties to determine the
scope of the offense of conviction for purposes of restitution).
The viewthatdistrict courts are best suitedfor .etermining CVRA
rights since they are closer to the dynamics of the case, pleas and disagreements goes along with the fact that a writ of mandamus is an "extraordinary
remedy that we will not issue absent a compelling justification." In re:
Prof'ls Direct Ins. Co., 578 F.3d 432, 437. (6th Cir.2009). "Only exceptional
circumstances amounting to a judicial usurpation of power, or a clear abuse of
discretion, will justify the invocation of this extraordinary remedy."
McNulty 597 F.3d 344 (6th Cir, 2010).
The Eighth Circuit in United States V Fast wrote that the 8th
circuit would apply the traditional standard of review for a mandamus petition.
Fast 709 F.3d 712 (8th Cir. 2013). The 6th Circuit also subscribes to a
traditional standard of review and in In re: Alec Lang they laid out five
factors for reviewing if they should grant a mandamus petition.
25
Of particular interest to this certiorari, they cited .a district courts
order being clearly erroneous as a matter of law as a reason to grant a writ and
if the district court's order is an oft-repeated error, or manifest a persistent
disregard of the federal rules. (Factors 3 & 4 of Lang).
This case law and five factor test for reviewing a district court
order puts into question why the Eighth Circuit granted MU's writ of mandamus.
What error was made by the district court? What was the persistant disregard
of federal rules? If anything, the 8th Circuit errored in allowing the writ
since it was 41 days past the allowed time to file under 18 USC 3771(d)(5)
Couple the untimely filing with the disturbing of the Plea Agreement by a
non-patty :and there:.ate.obvioü Due Proessviblation
that Petitioner prays the
Court will address.
The 9th Circuit has been the only court to address the Due Process
violations of the Writ of Mandamus and the 72 hour review requirement.
When a victim moved to have, a sentencing hearing re-opened because he had not
been given the opportunity to speak at. sentencing the court noted his rights
..13I. they.also
expressed concerns tt reopenin the sentencing without the
defendants participation could violate constitutional rights.
"[M]oreover, defendant AviLeichner is not a party to this Mandamus
action, and reopening his sentence in a proceeding where he did not
participate may well violate his right to due process. It would
therefore be imprudent and perhaps unconstitutional for us to vacate
Zvi's sentence without giving him an opportunity to respond."
In re: Kenna 435 F.3d 1011, (9th Cir.2006)
While the 10th Circuit:-in Hunter was addressing the issue of non-parties
trying.to change pleas and sentences they of ferred terrific insight into the
CVRA and why procedural rules and timelines must be followed. After focusing
on 18 USC 3771(d)(6) and the governments ability to prosecute crimes, they wrote
"This provision evinces the impropriety of re-opening sentences-especially those resulting from plea agreements ..... if individuals
were allowed to re-open criminal sentences after all issues
have been resolved--including any mandamus petitions by victims-26
then the government's prosecutorial discretion would be limited."
United States v Hunter,, 548 F.3d 1308 at 1316 (10th Cir.2008)
Petitioner would like to draw this courts attention to the fact we have the
9th Circuit aware of the defendant's rights in the process and then the 10th
Circuit aware of the government's prosecutorial powers under the CVRA. What
we have in Petitioners case is a writ that violated the defendant's rights
but it also sets a dangerous precedent for allowing plea agreements to be
disturbed. This is cthy the Court must decide in favor of the Petitioner's
-
writ because the CVRA allows a plea to reopened but only under the conditions
of USC:3771(D)(5)..
, The 8th Circuit in Binkholder.1noted their Due Process
: .
conernsbut nothing was ever done to afford him rights to challenge the actual
CVA Mandate. The court wrote:
"An additional relevant factor here is that Binkholder apparently
did not contest and may not have had the opportunity to contest
MU's petition for a writ of mandamus. See 18 USC 3771(d)(3)
("[t]he court of appeals shall take up and decide such application
forthwith within 72 hours after the petition has been filed").
We have significant--concerns about the due process implications
of the writ effectively increasing Binkholder's Guideline range by
two years if he did not have the opportunity to contest the
petition." Citing Footnote 4 of Binkholder 832, F.3d (8th Cir.2016)
Fznphais added by Petitioner
It cannot be disputed. Petitioner was sentenced using a higher sentencing
guideline range after his plea was disturbed. Petitioner has never been afforded
the Due Process rights discussed by the court in his own case. He has never
been allowed to challenge the materially false information that he was then
sentenced upon. United States v Atl. States Gast Iron Pipe Co., 612 F. Supp.
2d 453 (D.N.J.2009)("Due process right not to be sentenced upon materially
false information).
There are also Due Process Rights concern for the true victims of the
case. Here, the true victims were impacted by the 8th Circuits granting of
the writ certifying MU to be a CVRA Victim. The true victims were owed apparox.
27
approximately $2.1 Million and the PSR calculated nearly $3.7 Million in assets
of the companies owned by MU and Binkholder. By issuing the writ and by the
government granting Immunity to a partner of Binkholder without informing the
true victims--it appears to have violated the spirit of 18 USC 3771 and caselaw.
In addition, if it hadn't been for the remand of binkholder, the true victims
would have been reduced to accepting crumbs of the restitution payments.
As it was, MU would have received 30% of the restitution payments by Binkholder
but, as was presented by the government to Binkholder two months after sentencing
in 2015; MU would have still received his LLC distributions of profits. In
most of.- the ompanies MU owned 49% br .50%. (PI 714j).-
..
.
.
.
..
Thnkfully - thee:true victims 5 wer' able tooj.o be heard and
MU eventually agreed to deprioritized restitution payments--being paid after
the true victims are repaid. (Doc. 210,222A,. 227).
CVRA &. MVRA Pertaining to Immunity Agreements'
Finally the Petitioner prays the Court will vacate the CVRA Mandate
and determination that/MU was a victim under 18 USC 3771. The statute says
S
that "A person accussed of the crime may not obtain any form of relief under
this chapter[this section]." See 18 USC 3771 (d)(1). MU was granted Immunity
from Prosecution meaning the government could have prosecuted him but instead
entered into an agreement with him. As the court in Mcfarlane_wrote,
"Prosecutors often enter into informal immunity agreements with
criminal defendants, promising immunity in exchange for- information
from the defendant about other criminal activity, which information
may also incriminate the defendant in the wrongdoing."
United States V. .McFarlane 309 F.3d 510 (8th Cir. 2002)
But how should the courts view an immunity agreement in light of the case law
revolving around the MVRA that Co-Conspirators, Uri-indicted Co-Conspirators
and Deferred Prosecution Agreements negate an individuals rights to restitution?
Case law in general is slim but for the CVRA it's non-existent. Some suggest
this is due to the newness of the law and the fact most restitution claims
28
arise from white-collar financial fraud cases and most are settled via a Guilty
Plea Agreement. Due to this, many already have made decisions as to victims
and restitution. Furthermore, most Plea Deals today have appellate waivers
so many never make it to the appellate level for greater case law. This case
in fact, almost never made it due to an Appellate Waiver Clause however it was
ruled in Binkholder I to be an ambigious waiver.
It would be the rarest of financial fraud cases when the participants
in the fraud experienced no decrease in their assets upon discovery of the
offense. Since MU used MVRA & CVRA statutes within his writ of rnandamous
the. coursrnust look....tQ.iexistingMVRA case law. :. The plain language:: of. the MVRA
provides two classes of individuals--defendant and victims There is an
obvious third class--Co-Conspirators (indicted or otherwise). A literal
application of the MVRA would mean that individuals with equal culpability could
recover restitution from the defendant. As a result, "courts have recognized
that Congress could not have intended that result. Otherwise, the federal
courts would be involved in redistributing funds among wholly guilty
co-conspirators, where one or more co-conspirators may have ,ceated their
comrades. Indeed, the Second Circuit has held that an order of restitution
from one co-conspirator to another was an 'error so fundamental and so adversly
reflecting on the public reputation of the judicial proceedings that we may,
and do, deal with it sua sponte.' United States v Reifler, 446 F.3d 65, 127
(2nd Cir.2006); see also United States v Weir, 861 F.2d 542, 546 (9th Cir.1988)
(suggesting it would be improper to consider a participant to a crime as a
victim of the crime for purposes of restitution)," United States V Lazarenko,
624 F.3d 1247, 1251 (9thCir, 2010).
This same rationale has been applied to the
CVRA. As mentioned
above, the CVRA states thatone accussed of the crime is not entitled to relief.
This means that, "[A]n entity that admits to engaging in illegal fraud cannot
be a victim of that fraud for purposes of the CVRA and MVRA." In re Welicare
29
Health Plans, Inc. 754 F.3d1234,'1239 (11th cir.2014). This includes an
entity that is not necessarily a co-defendant; in Weilcare Health Plans, the
titular company had entered into a deferred prosecution agreement and was
cooperating with the government. ID at 1236.
Applying this paradign to the instant matter resolves any ambigiouty
with regards to whether one could be a culpable victim for guideline purposes.
A culpable individual would almost necessarily have contributed their time and
money to a fraud, but their culpability, and their superior knowledge of the
iraud, means they cannot complain of being harmed. And by the same token,
thy aot. c'lim their financial losses re' ar€ .f the "actual harm" of
the of férise. MU may haie nd some' of 'hid personaL funds to advance the offense
conduct, but he had knowledge of and access to the actual.state of the companies.
He knew that funds were being moved around from company to company to cover
shortfalls, he knew that proceeds from sales were being redirected. He knew
payments were being made or money was being siphoned out of escrow accounts
that only he controlled and had access to. He knew and participated in all
ft
of this Qnly to attain an Immunity From Prosecution agreement. The true victims
knew none of this and this is why MU also agreed to Subordinate his restitution
claim when the true victims began mounting a civil case against him. His
testimony was clear. He was knowledgable and participated. But should he really
be treated under the CVRA & MVRA as all the other victims?
Most telling out of all M's testimonty was when he was cross-examined
about his immunity agreement and he admitted - his attorney told him it was
best for him to be a designated victim. '(Doc 115 Pg. 79). Earlier in the
hearing AUSA Casey spelled out the terms of the agree ruent by asking MU,
"And you met with the Government pursuant to a letter you received
. from my office, ,me specifically, saying that, you had immunity
for any events that would transpire; is that right?"
It's a shock to the conscience to think that this letter and offer was 1 1/2
30
years prior to Binkholder's Indictment. Many of the actions that MU took
-
were the same actions Binkholder tookwere after his Immunity Agreement.
(Doc 115). Now the 8th Circuit reads the Record and decides he's a victim
and the district court made an abuse of discretion in their ruling?
If left unchanged, this case opens the door for white collar
participants to run to the door seeking Immunity in return for their protection
from both prosecution but also guaranteeing them their restitution from their
co-conspirators. This is .a case that needs to be addressed. Petitioner prays
this Court will take up and decide that Immunity from Prosecution should be
viewed by the courts exactly, as Co-Conspirators, Unindicted Co-Conspirators and
-
Deferred Prosecution Agreements
31
1
CONCLUSION AND PRAYER FOR RELIEF
Petitioner, Bryan Binkholder, respectfully requests this Honorable Supreme
Court to grant certiorari in this matter. The Eighth Circuit has not adequately
addressed 'the violations on the Petitioner of his Due Process .Rights and his
rights under the 6th Amendment to confront his accusser. While the court
expressed concerns about defendants due process rights, they have never afforded
him the opportunity to confront the original writ of mandamus petition that
subsequently disturbed and altered his plea agreement that the defendant had
made with the government.
Further, the writ of mandamus by M U was substantially out of the time
requirements under 18 USC 3771(d)(5) and should have been dismissed as an
untimely filing. By granting the' writ, the Eighth Circuit violated the defendants
rights while disregarding Jurisdictional time requirements.
Finally, Petitioner prays this Court will overturn the ruling by the
Eighth Circuit that M.U. is entitled to restitution under the CVRA & MyRA.
The statutes are clear, Co-conspirators are not entitled to reap the rewards
from 'ether charged partners in a scheme. Immunity from Prosecution should be
treated exactly, as the caselaw exists in the MVRA that parties under such an
agreement should be considered Co-Conspirators, Un-indicted Co-Conspirators or
operating under a deferred prosecution agreement. As such, no restitution is
allowed and Petitioner prays this Court will offer relief in this case.
Petitioner asks this court to vacate the 8th Circuits order recognizing
M.U. as a Crime victim pursuant to the CVRA and remand the case for resentencing
without MU as a victim of Petitioner's. crimes.
Respectfully Submitted,
Brythi Binkh6llder, pro se
#41868-044
ffiomson Federal Prison Camp
PO Box 1002
Thomson, IL 61285
32
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.