Phillips v Department of Commerce, Division of Securities

Phillips sought review of the order assessing civil penalties for securities fraud. The panel set aside the penalty and remanded for recalculation. It first held that the claims against Philips were not time barred as the five-year period only applies to civil and criminal enforcement not administrative actions like the one used here. It held the $10,000 fine limit applicable to civil action enforcement did not apply in administrative actions as the legislature omitted the limit in describing Department’s administrative enforcement power and importing the limit would render administrative enforcement a nullity. It held the component of the penalties for investor losses was authorized even though Department was not authorized to order restitution as that power is omitted form the administrative enforcement portion of the statute because the penalty was to be deposited with Department and can only be used for department activities and thus cannot make the investor victim’s here whole. It set aside the penalty, however, because the penalty was labeled as a fine which included a fine as part of the total and added two addition penalties not authorized by the statute given the conclusion that the $78,750 was sufficient fine under eh guidelines then adding all victim losses plus investigative expenses as these factors are specifically made part of the fine determination analysis under Utah Administrative Code Rule 164-31-1(B)(1) and thus Department erroneously interpreted or applied the rule which requires the penalty be set aside. It held that the limited analysis in the order imposing the penalty made appellate review of the fine competent impossible and remanded for reconsideration of the fine amount. It finally declined to consider Phillips’ excessive fine argument as the penalty was set aside but noted any administrative fine is subject to the excessive fine proportionality limit.State v Van Oostendorp

Van Oostendorp appealed his forcible sodomy conviction. The panel, with one judge adding a concurrence, affirmed. The panel held that the minor memory gaps that the victim had went to credibility, not competence to testify, that her testimony demonstrated she was present during the attack and remerged the attack in detail. It held that other bad acts evidence was not erroneously admitted as evidence about Van Oosetnorp’s view of the victim as a sex object was relevant to both party’s theory of the case and Van Oostendorp failed to provide any meaningful analysis of the issue and the threats of violence were not erroneously admitted because they were highly probative to the consent issue. The panel finally rejected Van Oostendorp’s jury instruction argument for inadequate briefing. Judge Voros added a concurrence arguing the factors set out in the Utah supreme Court Shicles precedent should be entirely abandoned and further arguing that evidence of abuse in a relationship is almost always admissible to provide context for evaluation of whether a given sex act is in fact consensual.

State v Atkinson

Atkinson appealed his prison sentence. The panel affirmed. It held that Atkinson failed to preserve his argument that the Americans with disabilities Act and rehabilitation act required a lesser sentence as he did not mention those statutes let alone argue they required a reduced sentence at sentencing and failed to argue plain error or ineffective assistance on appeal. It held that the prison sentence here was within the district court’s discretion given Atkinson’s lengthy criminal history, commission of five crimes while on probation and numerous probation and parole violations which the district court permissibly concluded outweighed Atkinson’s disabilities, family issue and drug issues.