United States v. Dass , 10 F. App'x 684 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 27 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5119
(D.C. No. 95-CR-54-K)
MULK RAJ DASS, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Mulk Raj Dass was convicted on one count of conspiracy, and four counts
of wire fraud and aiding and abetting. We affirmed his convictions on direct
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal, but we vacated his sentence and remanded to the district court for
resentencing because Mr. Dass was not afforded an opportunity to allocute before
he was sentenced, as required by Fed. R. Crim. P. 32(c)(3)(C). 1
United States v.
Kalyvas , Nos. 96-5176, 96-5144, 1997 WL 651761, at **7 (10th Cir. Oct. 21,
1997). In so holding, we stated that “Dass’ other challenges to his sentence may
be urged at resentencing.” Id. On remand, the district court held a second
sentencing hearing, at which Mr. Dass was afforded the opportunity to speak. It
then resentenced Mr. Dass to the same sentence he received at his first sentencing
(thirty-seven months’ imprisonment on each of the five counts of conviction, to
run concurrently, followed by three years of supervised release on each of the five
counts of conviction, to run concurrently, and restitution in the amount of
$25,000), with credit for time already served.
At resentencing, Mr. Dass argued several issues, several of which he now
raises in this appeal. 2
The problem is that only one of those issues is even
1
In the order and judgment affirming the convictions and remanding for
resentencing, we mistakenly cited Federal Rule of Civil Procedure 32(c)(3)(C) as
requiring the opportunity for allocution before sentence is imposed. In fact, it is
Rule 32(c)(3)(C) of the Federal Rules of Criminal Procedure that establishes the
requirement, and it is to that rule we refer in this order and judgment.
2
Mr. Dass’ attorney filed an appellate brief pursuant to Anders v. California ,
386 U.S. 738 (1967), raising all the issues Mr. Dass raised at resentencing.
Mr. Dass filed a pro se letter with this court on August 7, 2000, requesting
permission to file a pro se brief and elaborating on the issues raised by counsel in
the Anders brief. He was granted an extension of time in which to file a brief,
(continued...)
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arguably related to sentencing. Mr. Dass makes several conviction-related
arguments, three in the Anders brief filed by counsel and several others in his
response to the Anders brief. The three conviction-related issues raised in the
Anders brief and elaborated upon in Mr. Dass’ August 7 letter to this court are:
(1) the indictment should have been dismissed for noncompliance with the Vienna
Convention; (2) his right to be free from double jeopardy was violated because he
had already been punished for the offenses of conviction by the time he was
actually convicted, and as a result of the indictment’s failure to identify victims
referred to as “others;” and (3) the indictment was defective because it failed to
charge any overt acts after October 1993. The conviction-related issues Mr. Dass
presents in his response to his attorney’s Anders brief are: (1) the district court
lacked jurisdiction because the indictment identified the United States of America
as plaintiff and because the “United States District Courts,” as opposed to the
“district courts of the United States” are courts of limited jurisdiction; (2) the
indictment is defective because: it was based on erroneous grand jury testimony,
it was constructively amended, it fails to identify “other” victims, and it fails to
bar subsequent prosecution.
2
(...continued)
and, after that extension had expired, he requested permission to file an untimely,
oversized brief. Because we grant that motion, we have considered Mr. Dass’
brief in reaching our decision.
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These issues all relate to Mr. Dass’ convictions, and “[o]rdinarily, we will
not review in a second direct appeal an issue that underlies a previously affirmed
conviction.” United States v. Gama-Basitdas , 222 F.3d 779, 784 (10th Cir. 2000).
This general rule is based on the related principles of “law of the case” and the
mandate rule. Id. Our affirmance of Mr. Dass’ convictions in his first appeal is
the law of the case. In addition, because our mandate to the district court was to
resentence Mr. Dass, the remand did not reopen the underlying convictions for
review. Id. Consequently, we exercise our discretion to apply law of the case,
and we do not consider the issues relating to Mr. Dass’ previously affirmed
convictions. See United States v. Carson , 793 F.2d 1141, 1147 (10th Cir. 1986)
(recognizing that law-of-the-case doctrine is not jurisdictional, but should “be
applied at the sound discretion of the court to effectuate the proper administration
of justice”).
In addition, the principle of waiver precludes our review of these issues.
Mr. Dass raised none of these issues in his first appeal, and, consequently, he has
waived them. 3
See Dow Chem. Corp. v. Weevil-Cide Co. , 897 F.2d 481, 486 n.4
(10th Cir. 1990).
3
Mr. Dass couches at least two of his challenges to the indictment in
jurisdictional terms. To the extent that these issues are non-waivable, they are
patently frivolous and without merit.
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The only issue that Mr. Dass raises that is arguably related to sentencing is
that the district court erred in calculating the loss at $352,782.50 for purposes of
calculating his total offense level under the sentencing guidelines. We say
“arguably” because the government maintains that this issue is not related to
sentencing. It asserts that Mr. Dass is actually challenging the admission of
certain evidence at trial, which was used to calculate the loss for sentencing
purposes. It argues that, because this court held in the first appeal that the
evidence was properly admitted, Mr. Dass is actually challenging a matter that
this court has already ruled on, and he presents the argument in this second appeal
in the guise of a sentencing challenge to circumvent the law of the case. Mr.
Dass counters that assertion by specifically denying that he is challenging the
admission of the evidence, but is, instead, claiming that the loss figure is
incorrect because the district court considered inaccurate information.
Giving Mr. Dass the benefit of the doubt, we review the district court’s
calculation of loss only for clear error. See United States v. Abud-Sanchez , 973
F.2d 835, 838 (10th Cir. 1992). We have reviewed the record, and it supports the
district court’s loss figure. Mr. Dass has not shown that the district court’s loss
calculation of $352,782.50 was clearly erroneous.
-5-
Mr. Dass’ convictions have already been affirmed by this court, and we
now AFFIRM the district court’s judgment upon re-sentencing. Mr. Dass’ motion
to file an untimely, oversized brief is GRANTED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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