United States v. R. Scott Cunningham , 210 F. App'x 938 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 14, 2006
No. 06-12415 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00067-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
R. SCOTT CUNNINGHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 14, 2006)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
R. Scott Cunningham (“Cunningham”) appeals his convictions and twenty-
four month sentence for two counts of money laundering in violation of 18 U.S.C.
§ 1957(a) and one count of conspiracy to commit money laundering in violation of
18 U.S.C. § 1956(h). Additionally, he appeals the district court’s order requiring
him to pay $ 150,000 in restitution, arguing that his crimes, if any, were victimless.
Upon review of the record and briefs, we find that there is sufficient evidence to
support his convictions and that identifiable victims exist. Accordingly, we affirm
Cunningham’s convictions and sentence.
Background
Cunningham’s conviction is based on his alleged involvement in a Ponzi
scheme that defrauded over 1600 churches in more than 40 different states.
Cunningham acted as an attorney for Abraham Kennard, the creator of the scheme.
Cunningham received Kennard’s deposits and placed them in an escrow account,
issued checks from the account, and collected fees for his management of these
accounts. Cunningham was charged with knowing the fraudulent nature of the
scheme based, in part, on: 1) his knowledge that Kennard had recently declared
bankruptcy; 2) complaints about disbursement made by a pastor and her attorney;
and 3) communications from Arkansas Assistant Attorney General Edward Swaim
(“Swaim”) notifying Cunningham of his suspicions regarding the nature of the
monetary transactions. Cunningham challenges his conviction, arguing that the
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both § 1957(a) and § 1956(h) require proof of the element of knowledge and that
there is insufficient evidence that he knew that the money was illegally obtained.
Additionally, Cunningham argues that the district court should not have
ordered him to pay restitution. Cunningham contends that the United States is the
only victim in money laundering cases, and that in the absence of an identifiable
victim, restitution is improper.
Discussion
First, we review “challenges to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the government.” United States
v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). “A conviction must be upheld
unless the jury could not have found the defendant guilty under any reasonable
construction of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351
(11th Cir. 1999). This is a difficult standard to meet, and we find that Cunningham
has not met it. Kennard’s recent bankruptcy, the complaints from the pastor, the
discussions with Swaim, and Cunningham’s own familiarity with accounting
procedures provide ample basis for the inference that Cunningham was aware of
the nature of the scheme. We therefore conclude that the evidence is sufficient to
sustain the convictions, and affirm.
We review a district court’s restitution order for an abuse of discretion.
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United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir. 1997). Under the
Mandatory Victims Restitution Act, a sentencing court can order restitution for
offenses “against property under this title . . . including any offense committed by
fraud or deceit; or . . . in which an identifiable victim or victims has suffered a
physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). The term “victim” is
defined as “a person directly and proximately harmed as a result of the commission
of an offense for which restitution may be ordered.” 18 U.S.C. § 3663A(a)(2).
However, restitution may only be ordered when the “specific conduct underlying
the offense of conviction” caused a loss. United States v. Ledesma, 60 F.3d 750,
751 (11th Cir. 1995).
As noted by the district court, Cunningham not only deposited funds into his
account, but also withdrew them by making wire transfers. We find that these
wire transfers were the “specific conduct underlying the offense of conviction,”
and the transfers caused harm to identifiable victims, namely the defrauded
churches, because the transfers decreased the amount of money the government
could seize to return to the churches. Therefore, the district court did not abuse its
discretion by ordering Cunningham to pay restitution and we affirm his sentence.
AFFIRMED.
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