United States v. David Mayhew ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4020
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID CHRISTOPHER MAYHEW,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Fox, Senior District Judge. (5:13-cr-00199-F-2)
Argued: September 13, 2017 Decided: November 14, 2017
Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel
Hill, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John Stuart
Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Mayhew appeals several convictions and his sentence arising from a Ponzi
scheme he led with another man. Finding no reversible error, we affirm.
Between at least January 2009 and May 2012, Mayhew and Ron McCullough ran
a Ponzi scheme in the Raleigh, North Carolina, area, claiming to be successful investors
in foreign currency exchange (FOREX) groups. The charges in this case involve 19
victims and more than $2 million lost. McCullough is named as a codefendant in the
indictment, but he disappeared before the indictment was issued. Only the charges
against Mayhew are involved in this appeal.
McCullough was the primary public face of the scheme and did most of the
investment solicitation. Mayhew did meet with some of the victims, but he was not as
visible a part of the scheme as McCullough. Nonetheless, all of the victims knew that
McCullough worked with Mayhew, whom McCullough called his “brother” and
described as the main currency trader. The victims in this case are people from the
defendants’ church, people that McCullough randomly befriended, and people that some
of the victims brought into the scam. As to the various transactions in this case, the
defendants followed the same basic modus operandi. They would tell the victims about
their successful FOREX trading, and induce initial investments for small sums with
guaranteed rates of return over a relatively short period. These initial investments were
promptly returned with the promised gains. Thereafter, Mayhew and McCullough would
solicit larger investments with similar assurances of high returns over a quick period.
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Once these larger investments were made, Mayhew and McCullough would abscond with
the funds.
Mayhew and McCullough were eventually charged with one count of conspiracy
to commit mail and wire fraud; 15 counts of wire fraud; four counts of mail fraud; and
three counts of money laundering. A superseding indictment was issued in July 2014,
charging Mayhew with five additional counts of wire fraud, stemming from additional
fraudulent investments Mayhew solicited while on pretrial release in this case. These
five additional counts were dismissed at the government’s request in April 2015, two
months before trial.
Following the close of the government’s case, Mayhew moved for a judgment of
acquittal as to all counts. The district court dismissed five of the wire fraud charges
because the government failed to present evidence of an interstate nexus; the jury
convicted Mayhew of the remaining 18 charges. The district court sentenced Mayhew to
320 months, which was a significant upward departure and variance from the Guidelines’
range of 108 to 135 months that the district court had calculated.
Mayhew does not challenge the conspiracy conviction on appeal. Instead, he
challenges the sufficiency of the evidence as to some of the substantive mail fraud and
wire fraud counts; argues that the district court should not have given a willful blindness
instruction; contends the court erred in determining his role in the offense and in
calculating the loss amount for sentencing purposes; and argues that the 320-month
sentence is substantively and procedurally unreasonable. None of these arguments
warrants reversal.
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With regard to the challenged wire fraud convictions, even if McCullough was
more directly involved with the victims of these counts than Mayhew was, the
government at the very least presented sufficient evidence to justify convictions on
aiding-and-abetting theories. See United States v. Arrington, 719 F.2d 701, 705 (4th Cir.
1983) (“To be convicted of aiding and abetting, participation in every stage of an illegal
venture is not required, only participation at some stage accompanied by knowledge of
the result and intent to bring about that result.” (alteration & internal quotation marks
omitted)). As for the challenged mail fraud convictions, the government need only prove
that use of the mail can “reasonably be foreseen, even though not actually intended.”
Pereira v. United States, 347 U.S. 1, 9 (1954). Thus, Mayhew’s actual knowledge as to
whether Travis Cox would mail fraudulent statements to McGrath is irrelevant. See
United States v. Edwards, 188 F.3d 230, 235 (4th Cir. 1999). It is sufficient that Cox’s
testimony that he told Mayhew he needed statements “that [he] could send” made use of
the mail reasonably foreseeable. J.A. 1016 (emphasis added). While Mayhew makes
much of the fact that Cox and McGrath were friends, he ignores the formal nature of the
business transaction entered into between the two men, which included a signed contract
and regular receipt of written account statements. J.A. 726-30. Such business formalities
limit any inference that hand-delivery, not mail, was the foreseeable method of delivering
the fraudulent statements.
And concerning the challenged money laundering conviction, the evidence was at
least sufficient to justify a conclusion that Mayhew aided and abetted McCullough’s
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money laundering by giving him the number of the account to which the offending
payment was made.
Regarding Mayhew’s challenge to an instruction for willful blindness, any error in
giving the instruction was harmless in light of the ample evidence of Mayhew’s actual
knowledge of the charged financial crimes. See United States v. Lighty, 616 F.3d 321,
378-79 (4th Cir. 2010) (explaining that if a district court errs by giving a willful blindness
instruction, the error is harmless if “there is sufficient evidence in the record of actual
knowledge on the defendant’s part”). The same is true for Mayhew’s challenge to the
content of the instruction, which because it was not raised below, is reviewed only for
plain error. See United States v. Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010).
Finally, Mayhew’s challenges to his sentence are without merit. The district court
did not clearly err in enhancing Mayhew’s offense level because Mayhew “was an
organizer or leader of a criminal activity that involved five or more participants or was
otherwise extensive,” U.S.S.G. § 3B1.1(a), and because the amount of the loss caused
was more than $1.5 million but not more than $3.5 million, see U.S.S.G.
§ 2B1.1(b)(1)(I). The district court provided sufficient advance notice of its intention to
depart, and it was not required to provide advance notice of its intention to apply a
variance. See Fed. R. Crim. P. 32(h); see also Irizarry v. United States, 553 U.S. 708,
716 (2008) (“The fact that Rule 32(h) remains in effect [post-Booker] does not justify
extending its protections to variances . . . .”). And the extent of the district court’s
variance, though substantial, was not substantively unreasonable in light of the particular
facts of this case. See United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011)
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(This court reviews “any sentence, within or outside of the Guidelines range, as a result
of a departure or of a variance . . . for reasonableness pursuant to an abuse of discretion
standard.”).
In sum, we affirm Mayhew’s convictions and sentence.
AFFIRMED
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