10th Circuit: Sentence of imprisonment is final judgment although restitution issues remain open

Michelle Paup was convicted in a jury trial in federal magistrate court of theft of government property of less than $1,000 for shoplifting at an exchange store on an air force base in Colorado. She appealed to the district court, which upheld her conviction but vacated the restitution award and remanded for further proceedings. She then appealed her conviction and sentence.

In United States v. Paup (opinion by Judge Harris Hartz), the Tenth Circuit joined a number of other circuits in holding that a sentence of imprisonment is final and appealable even where restitution issues remain unresolved. Requiring that restitution issues be set before appeal “would frustrate a defendant’s need to promptly challenge her conviction or sentence of imprisonment.”

The Court also upheld the magistrate court’s exclusion of defendant’s expert witness, who was apparently going to testify that defendant had mental health problems that precluded her from having the required mens rea to commit shoplifting. Defense counsel at trial offered a number of insufficient excuses — such as a supposed inability to use PACER — for the late disclosure, which the magistrate court properly rejected.

Finally, the Court upheld a two-level enhancement of the defendant’s offense level for perjury. Ms. Paup testified at trial, and offered a number of patently implausible excuses for her conduct. For example, she hid two Coach bags in her purse and then claimed that she put them beneath her purse “so that [she could] keep track of [them],” and then later claimed that she had bought them at another store.

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