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United States v. Hopkins

United States Court of Appeals, Tenth Circuit

April 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
MARK HOPKINS, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 2:17-CV-00419-MCA and 2:09-CR-00863-MCA-1)

          Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for Defendant -Appellant.

          C. Paige Messec, Assistant U.S. Attorney (John C. Anderson, U.S. Attorney, with her on the brief), Albuquerque, New Mexico, for the Plaintiff - Appellee.

          Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.


         Dr. Mark Hopkins filed a motion under 28 U.S.C. § 2255 to vacate his 2010 conviction and sentence for tax evasion. Before his trial, the district court ordered him to make monthly payments into the court's registry to ensure he was complying with federal tax law. Several months later, Dr. Hopkins requested release of the funds so he and his wife, who was being tried with him, could pay their attorneys. The district court ordered the funds' return. But then the IRS filed notice of a lien on the funds, prompting the court clerk to file an interpleader action. The district court reversed course. Dr. Hopkins never received the funds. He and his wife were convicted in a jury trial.

         Dr. Hopkins filed his § 2255 motion on March 29, 2017, following the Supreme Court's decision in Luis v. United States, 136 S.Ct. 1083 (2016). Luis recognized a defendant's Sixth Amendment right to use untainted assets to hire counsel of choice.[1]Because his conviction became final in 2013, however, Dr. Hopkins's motion fell outside the usual one-year time limit set by § 2255(f)(1). He sought to avoid that time bar by relying on § 2255(f)(3), arguing that Luis created a "newly recognized" right that would be "retroactively applicable to cases on collateral review." The district court held that Luis did not create such a right, dismissed the motion, and granted a certificate of appealability. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), (c)(1), we affirm.

         I. BACKGROUND

         A. Trial and Direct Appeal

         1. Indictment and Pretrial Proceedings

         Dr. Hopkins and his wife Sharon Hopkins were tax protestors. They failed to pay income taxes for more than 13 years. In April 2009, a grand jury indicted them on one count of conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371, and seven counts of tax evasion, in violation of 26 U.S.C. § 7201. The Government moved to revoke Dr. Hopkins's pretrial release, arguing that he was not making quarterly income tax payments required by 26 U.S.C. § 6654. At a hearing on the motion, Dr. Hopkins agreed to make tax payments to an escrow account in the court registry. Between October 2009 and June 2010, he paid approximately $130, 000 into the registry.

         In June 2010, Dr. and Ms. Hopkins moved to end the required payments and have the funds returned. They asserted the payments had "drain[ed] their ability to pay" their lawyers, "thereby causing them to ultimately lose their constitutionally protected right of choice of counsel" under the Sixth Amendment. Aplt. App. at 121. The district court ordered the funds be returned to the Hopkinses. But before the funds' release, the IRS served notice of a federal tax lien on the court clerk. The clerk then filed an interpleader action for clarification as to the proper distribution of the funds. In response, the district court denied the Hopkinses' emergency motion to release the funds. Ms. Hopkins's attorney-who, the Hopkinses claim, "was an integral part of the defense team" for both of them, Aplt. Reply Br. at 8-withdrew on July 15, 2010.[2]

         2. Conviction and Sentence

         A jury convicted the Hopkinses on all counts. The district court sentenced Dr. Hopkins to 120 months in prison and three years of supervised release. It ordered the Hopkinses to pay more than $1, 700, 000 in restitution.[3]

         3. Direct Appeal

         The Hopkinses filed a joint appeal, and this court affirmed their convictions and sentences. See United States v. Hopkins, 509 Fed.Appx. 765, 767 (10th Cir. 2013) (unpublished). Although only Ms. Hopkins asserted a deprivation of the right to counsel of choice on appeal, see id. at 770, [4] our treatment of that issue on her appeal provides context for our consideration of Dr. Hopkins's § 2255 appeal.

         In deciding the right to counsel of choice issue, we relied on Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), and United States v. Monsanto, 491 U.S. 600 (1989). In Caplin & Drysdale, the defendant was charged with running a large-scale drug importation and distribution business. After he pled guilty and was ordered to forfeit the proceeds of his crimes under 21 U.S.C. § 853(a), [5] his attorney petitioned to collect his legal fees from the forfeited property. Id. at 621. The Supreme Court held the attorney could not recover fees out of the forfeited funds. Id. at 622. It explained that title to forfeitable assets vests in the government "at the time of the criminal act giving rise to forfeiture," id. at 627, and in light of that vesting, "a defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice," id. at 626.

         In Monsanto, decided the same day, the Supreme Court extended Caplin & Drysdale's holding to authorize freezing of a defendant's forfeitable assets before conviction to prevent dissipation, even when doing so prevents the defendant from paying counsel. 491 U.S. at 602. The indictment alleged that the defendant had obtained a house, an apartment, and $35, 000 in cash through drug trafficking. Id. The government obtained an order freezing those assets under 21 U.S.C. § 853(a). Id. at 603. Pointing to Caplin & Drysdale, the Court held that the order did not violate the defendant's right to obtain counsel of choice. It said, "[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial." Id. at 616.

         In the Hopkinses' appeal, we concluded that these cases foreclosed Ms. Hopkins's Sixth Amendment challenge. "[N]either the Fifth nor the Sixth Amendment to the Constitution requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant's legal fees." Hopkins, 509 Fed.Appx. at 773 n.6 (quoting Monsanto, 491 U.S. at 614). Just as the government had rightful possession over the forfeited property in Caplin & Drysdale, the IRS had been "within its rights to file the levy [over the registry funds], which limited Sharon Hopkins's right to the same funds." Id. at 773. Accordingly, the district court's refusal to return the $130, 000 to Dr. and Ms. Hopkins did not violate the Sixth Amendment right to counsel of choice. Id. at 773, 776.

         Following this court's decision, Dr. Hopkins did not seek certiorari from the United States Supreme Court. His conviction thus became final no later than June 11, 2013. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (explaining that under § 2255(f)(1), a criminal conviction becomes final when the Supreme Court affirms the conviction or denies certiorari, or, if review by the Supreme Court is not sought, when the time for filing a certiorari petition expires); Sup. Ct. R. 13(1) (2017) (providing that a certiorari petition is timely if filed within 90 days of entry of judgment).

         B. Luis v. United States

         On March 30, 2016, nearly three years after Dr. Hopkins's conviction became final, the Supreme Court decided Luis v. United States, 136 S.Ct. 1083 (2016). In that case, Sila Luis was charged with health care fraud. Id. at 1087. At the government's request, and pursuant to 18 U.S.C. § 1345(a)(2), the district court prohibited Ms. Luis from "dissipating, or otherwise disposing of . . . assets . . . up to the equivalent value of the proceeds" of the crime. Id. at 1088. The court's order forbade her from spending not just the proceeds of the crime, but also innocently-obtained property of the same value. Id.[6] She therefore could not use untainted funds to hire an attorney. Ms. Luis argued this restriction violated her right to counsel of her choice.

         The Supreme Court agreed. Observing that "[t]he Sixth Amendment right to counsel grants a defendant 'a fair opportunity to secure counsel of his own choice, '" id. at 1085 (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)), Justice Breyer said in the plurality opinion that "the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment." Id. at 1088.[7] It distinguished Caplin & Drysdale and Monsanto, both of which concerned a defendant's right to pay counsel using assets linked to the crime. The plurality explained, "The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to [Ms. Luis], pure and simple." Id. at 1090 ("[B]oth Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was 'tainted.'"). The difference between tainted and untainted assets was "the difference between what is yours and what is mine." Id. at 1091. The government had a property interest in the defendants' crime-tainted forfeitable assets in Caplin & Drysdale and Monsanto. But in Ms. Luis's case, the court's order extended to freezing "untainted" assets that were not tied to her crime. And even if these assets may have been subject to forfeiture upon her conviction, the government's contingent interest in the untainted assets did not outweigh Ms. Luis's right to use the assets to obtain counsel of her choice. Id. at 1092.

         The Luis decision drew two dissenting opinions. Justice Kennedy, joined by Justice Alito, called the Court's holding "unprecedented," adding that the decision "ignore[d] this Court's precedents and distort[ed] the Sixth Amendment right to counsel." Id. at 1103 (Kennedy, J., dissenting). He reasoned that Caplin & Drysdale and Monsanto "make clear that a defendant has no Sixth Amendment right to spend forfeitable assets (or assets that will be forfeitable) on an attorney." Id. Those cases involved assets that "belong[ed] to the defendant," just like Ms. Luis's assets, but because there was probable cause to believe the assets would be forfeited upon conviction, they could be seized or frozen before trial. Id. at 1106. Accordingly, Justice Kennedy reasoned, the plurality's distinction between "tainted" and "untainted" assets lacked support. In a separate dissent, Justice Kagan expressed doubts about the correctness of Monsanto's holding, but concluded that it should control the case. Id. at 1112 (Kagan, J., dissenting).

         C. District Court § 2255 Proceedings

         1. Section 2255(f) Statute of Limitations

         Section 2255(f) imposes a one-year statute of limitations on a prisoner filing a § 2255 motion. As relevant to this case, the one-year period runs from "the latest of . . . the date on which the judgment of conviction becomes final," id. § 2255(f)(1), or "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," id. § 2255(f)(3).

         2. Dr. Hopkins's § 2255 motion

         On March 29, 2017, [8] Dr. Hopkins filed a pro se motion to vacate his conviction under 28 U.S.C. § 2255.[9] He argued that the Luis decision was "a substantive change in the law" that entitled him to file the motion more than one year after his conviction had become final. Aplt. App. at 387. He contended that the funds he was ordered to pay into the registry were "innocent assets . . . needed to pay counsel of choice." Id. at 392. Under Luis, he said, the district court's refusal to release the registry funds amounted to "unconstitutional and impermissible restraint of [his] innocent assets," in violation of his Sixth Amendment right to counsel of choice. Id. at 400. The Government did not file a response and the district court did not order it to do so.

         3. District Court Ruling

         The district court dismissed Dr. Hopkins's § 2255 motion as untimely. United States v. Hopkins, No. 2:09-CR-00863 MCA, 2018 WL 1393780, at *2 (D.N.M. Mar. 19, 2018). It explained that to obtain relief, Dr. Hopkins needed to show ...

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