United States v. Sean Mescall , 624 F. App'x 103 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN F. MESCALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:12-cr-00215-RJC-1)
Submitted: October 29, 2015 Decided: December 14, 2015
Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William Robert Terpening, NEXSEN PRUET, PLLC, Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Anthony J. Enright, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean F. Mescall was convicted of: securities fraud, 15
U.S.C. §§ 78j(b), 78ff (2012), 17 C.F.R. § 240.10b-5 (2014);
wire fraud, 18 U.S.C. § 1343 (2012); and money laundering, 18
U.S.C. § 1956(a)(1)(B)(i) (2012). The charges related to
Mescall’s operation of a Ponzi scheme through which he defrauded
victims of approximately $1.5 million. He was sentenced to 168
months in prison for each offense. The sentences run
concurrently. Mescall appeals, claiming that the prosecutions
violated the Double Jeopardy Clause. We affirm.
I
On September 9, 2009, the Commodities Futures Trading
Commission brought a civil action against Mescall, charging him
with operating the Ponzi scheme. On September 16, 2009, the
district court issued a preliminary injunction forbidding the
movement of assets, appointing a receiver, and requiring Mescall
to cooperate fully with the receiver. Mescall violated the
preliminary injunction, and the court found him in contempt.
The court stayed imposition of civil contempt sanctions and
referred the matter to the U.S. Attorney for possible criminal
contempt proceedings. Mescall was charged with and convicted of
criminal contempt, in violation of 18 U.S.C. § 401(3) (2012).
Mescall subsequently was indicted for securities fraud,
wire fraud, and money laundering. The charges pertained to
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Mescall’s operation of the Ponzi scheme. Following a trial,
Mescall was convicted on all counts.
II
Mescall contends that the instant convictions were for the
same conduct as the criminal contempt conviction and thus
obtained in violation of the Double Jeopardy Clause, U.S. Const.
amend. V. The Double Jeopardy Clause forbids “successive
prosecutions for the same offense as well as the imposition of
cumulative punishments for the same offense in a single criminal
trial.” United States v. Shrader, 675 F.3d 300, 313 (4th Cir.
2012) (internal quotation marks omitted). Under Blockburger v.
United States, 284 U.S. 299 (1932), “successive prosecutions do
not violate the Double Jeopardy Clause if each offense contains
an element not contained in the other.” United States v. Hall,
551 F.3d 257, 267 (4th Cir. 2009) (internal quotation marks
omitted).
Here, application of the Blockburger test compels the
conclusion that there was no double jeopardy violation.
Criminal contempt has as an element the willful violation of a
court order, United States v. Allen, 587 F.3d 246, 255 (5th Cir.
2009), while the other offenses do not. Additionally, wire
fraud contains an element — use of a wire communication, United
States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012) — that
criminal contempt does not; securities fraud contains an
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element — engaging in fraud in connection with the purchase or
sale of a security, 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5 —
that criminal contempt does not; and money laundering contains
an element — a financial transaction designed to conceal
proceeds of an unlawful activity, United States v. Cone, 714
F.3d 197, 214 (4th Cir. 2013) — that criminal contempt does not.
We conclude that there was no double jeopardy violation.
III
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the
decisional process.
AFFIRMED
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