United States v. Hemphill

447 F. App'x 733
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 22, 2011
DocketNo. 11-1372
StatusPublished
Cited by2 cases

This text of 447 F. App'x 733 (United States v. Hemphill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hemphill, 447 F. App'x 733 (7th Cir. 2011).

Opinion

ORDER

John Hemphill was indicted for mail fraud and false impersonation of a federal officer after conducting a multi-year scheme in which he claimed ownership of certain properties as a “receiver” for the federal government, filed fraudulent deeds with the Cook County Recorder of Deeds (“CCRD”), and duped unsuspecting buyers into paying him for properties that he had no authority to convey. He proceeded to trial pro se, with the assistance of appointed stand-by counsel, and a jury convicted him on both counts.

On appeal, Hemphill argues that he is entitled to a new trial because the district court 'took judicial notice of the non-existence of certain laws and legal citations referenced in documents that Hemphill filed with the CCRD and failed to instruct the jury on the meaning of judicial notice until final instructions were given. But we find that the court committed no error. He also challenges his sentence, arguing that the court considered unreliable evidence when calculating the intended loss of his crimes.1 But because there was sufficient evidence to support Hemphill’s conviction and the district court properly calculated the intended loss, we affirm.

I. BACKGROUND

In October of 2002, Hemphill incorporated two businesses in Illinois: United States Receivers Caretakers Association (“USRCA”) and United States Mortgage Release Corporation (“USMRC”), listing himself as president and secretary. Unfortunately, Hemphill used these misleadingly-named companies to perpetrate a rather elaborate fraud. His scheme involved first claiming that certain properties in Illinois had been seized by the federal government and taking possession of the properties as the government’s “receiver,” then filing fraudulent transfer deeds with the CCRD, and finally attempting to turn a profit by selling the properties. Between 2002 and 2009, when he was indicted in this case, Hemphill filed dozens of fraudulent deeds with the CCRD, typically including one deed purporting to transfer a property from its rightful owner to USRCA or USMRC, and then another transferring the property from the compa[735]*735ny to an unsuspecting third-party purchaser.

During the summer of 2009, the United States Postal Inspection Service and the United States Department of Housing and Urban Development began investigating Hemphill after receiving a number of complaints about him. One complainant, a company named Atlas Oil, charged that it received a letter at its office in Michigan, sent via U.S. Mail and postmarked in Chicago on May 14, 2009, claiming that Hemp-hill was the rightful titleholder for a property that Atlas Oil had recently purchased. During a conversation between Hemphill and Eric Kociba, an attorney for Atlas Oil, Hemphill claimed to be a federal “receiver” who took the property pursuant to a federal drug forfeiture. Atlas Oil later noticed that two deeds related to the property had been filed with the CCRD, one fraudulently conveying the' property to USRCA, and the other transferring it from USRCA to Abul and Sabera Iqbalud-din (the Iqbaluddins).

On September 3, 2009, Postal Inspector Richard Flowers, working undercover, met with Hemphill at the USRCA office to express his interest in obtaining a property located on South Paulina Street in Chicago (the “Paulina property”). Flowers gave Hemphill’s secretary a $500 cashiér’s check as a down payment, and in return received a USRCA receipt, which Hemp-hill signed, indicating a $5,000 remaining balance, payable over the next six months. A few weeks later, a “release deed” prepared by USRCA was filed with the CCRD. The document purported to release the “mortgage claim” of Deutsche Bank on the Paulina property.

On October 14, when Flowers went to the USRCA office he gave Hemphill two cashiers checks for $2,750 each, payable to the order of USRCA. In return, Hemphill gave Flowers a “special warranty deed,” which purportedly transferred the Paulina property’s title from Deutsche Bank Trust Company. That day, federal agents arrested Hemphill, and executed a search warrant on the USRCA office. They found, among other things, copies of letters that Hemphill sent to various banks and property owners claiming that their properties had been seized by the federal government. Of particular note, the agents obtained copies of letters addressed to Atlas Oil, and to a real estate agent, Andre Bennett, whom Citibank had authorized to sell a property that Hemphill claimed had been seized.

During Hemphill’s trial, the government moved the court to take judicial notice of the fact that the laws and legal citations referenced in the documents that Hemphill filed with the CCRD did not exist.2 Hemphill objected, arguing that doing so would pose the risk that the jury would draw an improper inference, and his standby attorney requested that the court inform the jury that it was not offering an opinion on those issues and that Hemphill was presumed innocent. The district' court overruled Hemphill’s objection and denied his stand-by counsel’s request. However, the court did give the following in its final instructions to the jury: “I have taken judicial notice of certain facts that may be regarded as matters of common knowledge. You may accept those facts as proved, but you are not required to do so.” The jury found Hemphill guilty.

[736]*736At sentencing, the district court calculated the intended loss of Hemphill’s crimes at $773,050. Over Hemphill’s objection, the court attributed $600,000 in that amount for Hemphill’s offer to the Iqba-luddins to “modify” the mortgage on one of their commercial properties and to reduce the principal balance from $1.6 million to roughly $600,000, with all future payments made directly to him. The court also credited the statements that Sabera Iqbaluddin made to the probation officer responsible for Hemphill’s Presentence Report (“PSR”) about Hemphill’s offer to modify her loan, and a receipt she provided that appeared on USRCA letterhead and memorialized a $3,500 payment and “remaining balances” in excess of $600,000. Inclusion of this amount in the loss calculation increased Hemphill’s offense level by 14 levels, so Hemphill received a 90-month term of imprisonment for the fraud, and a concurrent 36-month term for the false impersonation. This appeal followed.

II. ANALYSIS

Hemphill argues that the court committed reversible error by taking judicial notice of the non-existence of the legal citations in the deeds and other documents that he filed with the CCRD after the government introduced into evidence copies of such documents. He also asserts that the court should have immediately given the judicial notice instruction, which explained that the court offered no opinion on the facts being noticed and that Hemp-hill was presumed innocent. We review the district court’s decision to take judicial notice, and its refusal to provide the instruction Hemphill requested, for abuse of discretion. United States v. Martin, 618 F.3d 705, 735 (7th Cir.2010); see also Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.1997).

It is well settled that courts may take judicial notice of common knowledge and matters of public record not subject to reasonable dispute, such as state statutes and city ordinances. Fed. R. Evid.

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Bluebook (online)
447 F. App'x 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hemphill-ca7-2011.