Brown v Buhman

Buhman appealed the district court ruling that Utah’s bigamy statute is unconstitutional. The panel held the case was mooted by Buhman’s formal adoption of not prosecuting religiously motivated polygamists as Brown sought only prospective relief and face no credible threat of prosecution under the new policy as there is no evidence Buhman lied to the district court or will not follow the new policy and, in addition, Brown  moved out of state and thus is no longer within the jurisdiction of Buhman’s office and the statute of limitations has run for conduct prior to the move and Brown intends to stay out of Utah making future prosecution highly unlikely. The panel held the possibility a future Utah County Attorney will reverse Buhman’s policy did not bring the case back to life as there is no reasonable current possibility of prosecution. It held Buhman’s failure to agree the bigamy statute is unconstitutional does not make the case live as Buhman pledged under penalty of perjury not to prosecute religiously motivated polygamists and there is any reason to doubt he will keep his word.  As the policy was adopted before final judgment here, the case became moot at that point the district court erred in ruling on the merits of the case. The judgment was vacated and the case remanded for entry of judgment of dismissal without prejudice.

United States v Marceleno

Marceleno appealed the denial of his motion to withdraw his guilty plea. The panel, 2-1, affirmed. The majority held there was no abuse of discretion in the district court’s finding that Marceleno did not credibly assert innocence because, while his testimony established a basis for a duress defense, the district court was not required to accept the testimony as true and is not required to rule on actual innocence and the evidence had internal problems including loss of memory, no mention of any threats during his interviews with border patrol agents, Marceleno’s statements he was going to Fort Worth, Texas  and the fact that the story of distress only came up four months after  entry of plea. It also held that Marceleno offered no support for his argument that mistaking the strength of a defense can provide a basis to withdraw a guilty pela. The dissent argued the motion should have been granted because Marceleno was wrongly told duress was not a defense and a reasonable juror could acquit based on duress.

United States v Johnson

Johnson appealed his mail fraud and related convictions and the denial of his new trial motion. The panel affirmed. It first held that Johnson waived his claims made in a second motion for new trial as he failed to meet a final filing deadline after receiving eight extensions.  It held the only remaining new trial argument was without merit as the statements by the prosecutor was based on evidence that Johnson actually lived in the house being discussed. It held the motion for acquittal was properly denied as there was evidence that Johnson committed the crimes if the jury believed the witnesses and it is up to the jury to resolve factual dispute and credibility determinations and there was direct evidence Johnson knew he was participating in a mortgage fraud scheme and even did one fraudulent mortgage application by himself. It affirmed his money laundering convictions noting the government needed to prove the monies involved were proceeds of the fraud not that Johnson received the monies.