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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 23, 2016

v No. 327375 Bay Circuit Court JOEL IRWING WILSON, LC No. 13-010011-FH

Defendant-Appellant.

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

. A jury convicted defendant of racketeering, MCL 750.159i(3), l arceny by conversion of $20,000 or more, MCL 750.362, two counts of securities fraud, M CL 451.2501, and two counts of securities act violation, MCL 451.2508. The court sentenced defendant to concurrent prison terms of 105 to 240 months for t he racketeering conviction and 80 to 120 months for each remaining conviction. Defendant appeals as of right. We affirm defendant’s convictions, but remand for further proceedings consistent wit h this opinion.

I. FACTS

Defendant’s convictions arise f rom his involvement in an elabo rate real estate scheme involving the purchase of distressed property to be renovated and sold at a profit. In 2009 defendant and his partner, Michael Kazee, started Diversified G roup Management Partnership, LLC (Diversified) and American Realty Funds Corporation (Americ an). Diversified, in turn, created 17 limited partnerships, each with a limited number of investors. 1 Kazee left the company in May 2012. The prosecution alleged that defendant st ructured the various entities in a manner designed to evade compliance with federal and state se curities laws and regulations, and to deceive individuals into in vesting in unprofitable compa nies, thereby allowing defendant to use the investment funds for his family’s personal gain, rat her than for the purposes for which the funds were invested. Over th e course of this enterprise fr om 2009 to 2012, approximately 125 investors invested approximately $7 million. The investors lost approximately $6.4 million.

1 American was a registered, publicly traded company. None of t he Diversified partnerships were registered.-2- The prosecutor maintained that , during this time period, defend ant converted approximately $583,000 in Diversified assets.

II. CHANGE OF VENUE

Defendant first argues that the trial court erred in denying h is motion for a change of venue due to extensive adverse pretrial publicity. 2 The record reflects that the trial court denied defendant’s pretrial motion for a change of venue, without prej udice to defendant renewing the motion at trial. At trial, the court engaged in a lengthy sele ction process that included the sequestration of any jurors who had been exposed to media cover age about the case, and then separate questioning of each of th ese jurors. Defendant not on ly failed to renew his motion for a change of venue, but expressed sa tisfaction with the jury that was chosen. Under these circumstances, defendant waived review of the change of venue i ssue. People v Clark , 243 Mich App 424, 425-426; 622 NW2d 344 (2000).

III. EXPERT TESTIMONY

Defendant next argues that the trial court erred by denying hi s motion for a mistrial. 3 Defendant argues that a mistrial should have been granted becau se (1) the prosecutor’s expert witness offered his own opinions of the applicable law, and (2) the expert relied on facts not in evidence in support of his opini ons. The parties agree that, i n Michigan, an expert witness’s testimony must be based on facts in evidence. MRE 703; Teal v Prasad , 283 Mich App 384, 394-395; 772 NW2d 57 (2009). The parties also agree that the e xpert initially relied, in part, on facts not in evidence in support of his opinion concerning defe ndant’s actions. The question is whether the trial court abused its discretion in determining th at a curative instruction, rather than a mistrial, was a proper remedy.

A mistrial is an extraordinary remedy that should be granted o nly when an error is so egregious that its prejudicial effect cannot be remedied in any other way. People v Lumsden , 168 Mich App 286, 299; 423 NW2d 645 (1988). This is not such a cas e. After it became apparent that the testimony of the expert was based on certain items tha t lacked evidentiary support, the trial court repeatedly asked the expert if his opinion would be the same based on the facts actually presented at trial, and the expert agreed that it woul d be. The trial court also explored which matters of evidence the expert would use to support his o pinion, and the expert provided that information. The trial cour t then provided cautionary ins tructions to both the expert and the jury concerning the proper bas is for the expert’s testimony. A dditionally, the court cautioned the expert about the difference between the ultimate question of de fendant’s guilt or innocence of the criminal charges and stating that defendant had misrepresented the securities to investors or had breached his standard of care as a fiduciary. The trial court also instructed the jurors that they

2 We generally review a trial court’s decision concerning a moti on for a change venue for an abuse of discretion. People v Jendrzejewski , 455 Mich 495, 500; 566 NW2d 530 (1997).

3 We review a trial court’s decision to grant or deny a motion f or a mistrial for an abuse of discretion. People v Ortiz-Kehoe , 237 Mich App 508, 512; 603 NW2d 802 (1999).-3- would make the ultimate decision concerning defendant’s guilt o r innocence. “Jurors are presumed to follow their instru ctions, and instructions are pre sumed to cure most errors.” People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003). Under the circum stances, defendant has not shown that the trial court abused its discret ion by denying the motion for a mistrial and instead curing the initial problems with the exper t’s testimony through additional questioning and appropriate jury instructions.

IV. VIOLATION OF SEQUESTRATION ORDER

Defendant next argues that defense counsel was ineffective for failing to move for a mistrial based on violations of the trial court’s sequestrationorder. 4 To establish ineffective assistance of counsel, “a defenda nt must show that (1) counsel’ s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been differe nt.” People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” People v Chenault , 495 Mich 142, 150; 845 NW2d 731 (2014) (citation and quotation marks omitted).

The trial court ordered the s equestration of witnesses on the first day of trial. Defendant asserts that witnesses Pamela Buehl and Vicki Tedrow violated t his order by attempting to remain in the courtroom at the beginning of the trial. The rec ord does not support this claim. Instead, at the start of the p roceedings on February 25, 2015, the prosecutor note d that there were some witnesses in the courtroom and the trial court asked them to leave. Neither Buehl nor Tedrow were mentioned by name. Even if the two were present, n othing suggests that the trial court found that they were li stening to witness testimony.

Later, Buehl admitted that during a break in her testimony, sh e violated the sequestration order, but she denied that she had attempted to listen to the t estimony of David Charlesbois, who had testified before her. Defense counsel stated that Buehl ha d left the courtroom during the break in her testimony and went into a nearby conference room w here she began to speak to other witnesses. The prosecuto r stated that he had spoken with Buehl, who admitted that she may have told another witness, presumably Tedrow, about her “pe rfect signatures,” referring to her signatures on documents that she claimed were forged. The trial court brought Buehl into the courtroom and admonished her for speaking with other witnesses. The court also allowed defense counsel to cross-exami ne Buehl about the alleged violat ions.

In People v Meconi , 277 Mich App 651, 654; 746 NW2d 881 (2008), this Court observed:

The purposes of sequestering a w itness are to “prevent him fro m ‘coloring’ his testimony to conform with the testimony of anoth er,” People v

4 Because defendant did not raise a claim of ineffective assista nce of counsel in a motion for a new trial or request for an evid entiary hearing, our review of this issue is limited to errors apparent from the record. People v Lopez , 305 Mich App 686, 693; 854 NW2d 205 (2014).-4- Stanley , 71 Mich App 56, 61; 246 NW2d 418 (1976), and to aid “in detec ting testimony that is less than candid.” Geders v United States , 425 US 80, 87; 96 S Ct 1330; 47 L Ed 2d 592 (1976). Additionally, the United State s Supreme Court has recognized three sanctions t hat are available to a trial co urt to remedy a violation of a sequestration or der: “(1) holding the offending witness in contempt; (2) permitting cross-examination concerning the violation; and (3) precluding the witness from testifying.” United States v Hobbs , 31 F3d 918, 921 (CA 9, 1994), citing Holder v United States , 150 US 91, 92; 14 S Ct 10; 37 L Ed 1010 (1893). Although usually stated in the context of a defense witness’s e xclusion in a criminal case, courts have routinely held that exclusion of a w itness’s testimony is an extreme remedy that should be sparingly used. See, e.g., United States v Smith, 441 F3d 254, 263 (CA 4, 2006); Hobbs

, supra

. In the instant case, the trial court permitted defense counsel to cross-examine Buehl regarding her alleged violati ons of the sequestration order. S uch cross-examination is a recognized remedy where a sequestration order has been violated . The opportunity for crossexamination allowed the jury to learn of any possible prejudice Buehl’s actions may have had on Tedrow’s testimony, and thereby assess whether it affected Tedr ow’s credibility. Defendant has not shown that defense counsel act ed unreasonably by not reques ting a mistrial, particularly considering that a mistrial is not a recognized remedy for viol ation of a sequestration order. In addition, Buehl’s testimony explaining the limited nature of th e violation did not establish any substantial basis for believing that the violation was calculat ed to aid Tedrow’s testimony. Accordingly, defendant has faile d to establish that counsel was ineffective for failing to move for a mistrial with respect to this issue. People v Reed , 453 Mich 685, 695; 556 NW2d 858 (1996).

V. GREAT WEIGHT OF THE EVIDENCE

Defendant argues that he is entitled to a new trial because th e jury’s verdicts are against the great weight of the evidence. 5 The test to determine whether a verdict is against the great weight of the evidence is whet her the evidence preponderates so heavily against the verdict that it would be a miscarriage of jus tice to allow the verdict to st and.” People v Musser , 259 Mich App 215, 218-219; 673 NW2d 800 (2003). Mere conflicting testim ony and credibility concerns do not suffice to grant a new trial; rather, exceptional circum stances must exist, such as where directly contradictory testimony was so far impeached that it w as deprived of all probative value, where witness testimony was so i nherently implausible that a re asonable juror could not believe it, where testimony contradicted indisputable physical facts or defied physical re alities, or where the case was marked with unacceptable uncertainties and discrep ancies. People v Lemmon , 456 Mich 625, 643-646; 576 NW2d 129 (1998). “[A]bsent exceptional circumstances, issues of

5 Defendant acknowledges that he did not raise this issue in a m otion for a new trial below, leaving the issue unpreserved. MCR 2.611(A)(1)(e); People v Winters , 225 Mich App 718, 729; 571 NW2d 764 (1997). This Court re views an unpreserved issue c hallenging whether convictions are against the great weight of the evidence for pl ain error affecting substantial rights. People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003).-5- witness credibility are for the jury, and the trial court may n ot substitute its view of the credibility for the constitutionally guaranteed jury determinat ion thereof.” Id . at 642 (quotation omitted).

Defendant generally maintains that the prosecution’s witnesses were “deprived of all probative” value because they were investors who had lost all o f their money, and thus had a motive to lie. He also argues that the prosecution’s expert wi tness was biased against him, in part because the expert was an attorney involved in a class act ion suit against defendant. He argues that another witness provided testimony against him sole ly to obtain favorable sentencing in her own criminal case. These bases for challenging the cred ibility of the witnesses do not approach the threshold necessary to demonstrate that defendant’ s convictions are against the great weight of the evidence. They amount to nothing more than arguments that the witnesses had various motives to lie. These were credibility matters to be resolved by the jury. Id . They do not rise to the level of exceptional circumstances in which a court may second-guess the jury’s credibility determination.

In discussing the alleged lack of evidence that he committed l arceny by conversion, defendant essentially argues that because he was a signatory on the Diversified accounts, he could not have “converted” the money in the accounts to his per sonal use in violation of MCL 750.362. However, defendant fails to discuss all of the eviden ce presented, in particular the documentary evidence that supported a finding that not only did defendant lie to investors about the actual risks for their initia l investment, he also forged t heir signatures inorder to draw on their brokerage accounts without their permission. Defendant a lso fails to discuss the evidence that he used Diversified funds for his personal use, instead of the purposes for which they were invested.

Similarly, defendant states that no evidence was presented to show that he violated the registration requirement concerni ng public securities or that the Diversified partnerships were required to be registered, because no evidence was presented th at the partnerships were actually advertised. However, he ignores that the jury viewed a video o f defendant advertising Diversified investments, whichcontained advertising specifical ly marketing Diversified to investors outside of Michigan. Two of the prosecutor’s expert witnesses testified that this advertising was enough to remove the diversified partnerships f rom any registration exemption.

In sum, the evidence does not preponderate so heavily against the jury’s verdicts that it would be a miscarriage of justice to allow the verdicts to stan d.

VI. AMENDED COMPLAINT

Defendant was extradited from Germany to stand trial in this c ase. He argues that under the extradition treaty between the United States and Germany, t he prosecutor was prohibited from changing, adding to, or amendi ng the criminal charges used to justify the extradition, and that the prosecutor violated thi s “principle of specialty” by a mending the complaint to allege new offenses, thereby depriving the trial court of personal jurisdi ction over him with respect to any unextradited or amended charges. We disagree.-6- “The principle of specialty ‘re quires that the requesting coun try not prosecute for crimes . . . for which an extradition was not granted.’ ” United States v Garrido-Santana , 360 F3d 565, 577 (CA 6, 2004), quoting Demjanjuk v Petrovsky , 776 F2d 571, 583 (CA 6, 1985), vacated on other grounds, 10 F3d 338 (CA 6, 1993). The Sixth Circuit has recognized that the rule of specialty bars the prosecution of an individual for unextradite d crimes. Garrido-Santana , 360 F3d at 578. Incorporating this principle of specialty, article 22(1) of the extradition treaty with Germany provides in pertinent part:

A person who has been extradite d under this Treaty shall not b e proceeded against, sentenced or detained with a view to carrying out a se ntence or detention order for any offense committed prior to his surrender other than that for which he was extradited , nor shall he be for any other reason restricted in his person al freedom, . . . [Treaty Between the United States of America and the Federal Republic of Germany Concerning Extradition, signed June 20, 197 8, art 22, cl 1 (emphasis added).]

The term “offense” is not speci fically defined in the treaty. However, plaintiff correctly observes that the complaint and amended co mplaint contain the same offen ses, with the same possible penalties. There are only two differences between the original and amended complaints. First, in count two of the amended complaint, concerning the larceny b y conversion charge, the language was changed from the conversion of property “which bel onged to Robert Wachoski and other investors in the Diver sified Group” to the conversionof property “which belonged to the investors in the Diversified Group[.]” The removal of one specific complainant does not change the nature of the offense. Both complaints alleged thatdefendant converted money from investors in the Diversified Group; Wachoski was one member of the group. Neither the elements of the offense nor the possible punishment were change d by the amendment.

The second change involved one o f the securities act violation s, specifically that defendant illegally offered or sold unregistered securities, co ntrary to MCL 451.2508. The language was changed from “offe ring or selling a non-registered security to Robert Wachoski” to “offering or selling a non-registered security to Pamela Buehl[ .]” The proofs for this charge remained essentially the same, despite that Wachoski may have p urchased an interest in a different Diversified partnershi p, or invested a different amou nt, than Buehl. The crime charged is the offering of the unregistered security. Defendant has no t shown that he was charged with a different offense so as to trigge r the rule of specialty. More over, because no formal charging document is necessary to support a request for extradition unde r the treaty, see Kaiser v Rutherford , 827 F Supp 832, 834 (DDC, 1993), and the amendment of the com plaint only fixed a technical defect in the initial complaint, we conclude that the amendment did not amount to a change in the charge or offense so as to prevent a trial on the offense. See In re Rowe , 77 F 161, 167 (CA 8, 1896).-7- VII. SENTENCING

Defendant argues that he is entitled to resentencing because h is sentences were based on improper judicial fact-finding in violation of his Sixth Amendm ent right to a jury trial, and because the trial court departed from the sentencing guidelines , resulting in an unreasonable
sentence. 6

In People v Lockridge , 498 Mich 358, 364, 392; 870 NW2d 502 (2015), our Supreme Court held that “the rule from Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States , 570 US ____; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and ren ders them constitutionally deficient” to the extent that they “ require judicial fact-finding be yond facts admitted by the defendant” or found by the jury to score offense variables that mandatorily increase the floor of the guidelines minimum sentence range. (Emphasis in original). To remedy that violation, the Court severed MCL 769.34(2) “to the extent that it makes the se ntencing guidelines range as scored on the basis of facts beyond those admitted by the defen dant or found by the jury beyond a reasonable doubt mandatory.” Lockridge , 498 Mich at 364. In addi tion, the Court struck the requirement in MCL 769.34(3) that a sentencing court state subs tantial and compelling reasons for imposing a sentence that departs from the guidelines range. Id. at 364-365. A sentence that departs from the applicable guide lines range is to be reviewed for reasonableness. Id. at 392.

The trial court scored the gui delines for defendant’s convicti on of racketeering, a class B offense, MCL 777.16i, resulting in a guidelines range of 51 to 85 months. The trial court departed from that range and sentenced defendant to a prison te rm of 105 to 240 months for his conviction of racketeering. Although defendant argues that the scoring of offense variables 9, 10, and 14 were each based on judicially-found facts, because d efendant received a departure sentence, he was not prejudiced by any impermissible judicial f act-finding in the scoring of these variables. See Lockridge , 498 Mich at 394, 399 (where a court imposes a departure sente nce, and thus does not rely on the guidelines minimum sentence range , the defendant cannot show prejudice from any error in scori ng the guidelines in violationof Alleyne ).

However, with respect to defendant’s challenge to the substant ive length of his sentences, remand for further proceedings i s necessary. Initially, defend ant’s reliance on the factors in 18 USC 3553(a) for determining the reasonableness of his sentences is misplaced. In People v Steanhouse , 313 Mich App 1, 47; ___ NW2d ___ (2015), lv gtd ___ Mich ___ (2016), this Court expressly rejected the applica tion of 18 USC 3553(a) for purpos es of determining whether a departure sentence in Michigan is unreasonable under Lockridge . Instead, the reasonableness of a departure sentence is to be de termined under the “principle o f proportionality” standard set forth in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990). Steanhouse , 313 Mich App at 47-48. This Court further held in Steanhouse that where, as here, a defendant was sentenced

6 A Sixth Amendment challenge presents a question of constitutio nal law that this Court reviews de novo. People v Drohan , 475 Mich 140, 146; 715 NW2d 778 (2006). This Court reviews a departure sentence for reasonableness. People v Lockridge , 498 Mich 358, 365, 392; 870 NW2d 502 (2015).-8- before Lockridge overturned the substantial and compelling reason standard for departures, and the trial court was unaware of and not expressly bound by the r easonableness standard rooted in Milbourn , the case should be remanded for a Crosby 7 proceeding, as adopted in Lockridge

. Steanhouse , 313 Mich App at 48. On remand, the trial court should follow the procedure described in Lockridge . Defendant must be given the option of promptly notifying the trial court that resentencing will not be sought. If notification is not r eceived in a timely manner, the trial court shall continue with the remand procedure as explained in Lockridge . See id . at 48-49.

We affirm defendant’s convictions, but remand for further proc eedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Donald S. Owens /s/ David H. Sawyer /s/ Douglas B. Shapiro

7 United States v Crosby , 397 F3d 103 (CA 2, 2005).