United States v. Joseph Marak ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4850
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH J. MARAK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:10-cr-00332-H-1)
Submitted: June 29, 2012 Decided: July 19, 2012
Before DAVIS, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Joseph Marak of one count of
extortion under color of official right, in violation of 18
U.S.C. § 1951 (2006) (Count One); and seventeen counts of
bribery by a public official, in violation of 18 U.S.C.
§ 201(b)(2) (2006) (Counts Two through Eighteen). * The district
court sentenced Marak to seventy-two months of imprisonment, and
he appeals. Finding no error, we affirm.
Marak first challenges the sufficiency of evidence
supporting his convictions. We review challenges to the
sufficiency of evidence de novo. United States v. Roe, 606 F.3d
180, 186 (4th Cir.), cert. denied, 131 S. Ct. 617 (2010). We
are obliged to sustain a guilty verdict that, viewing the
evidence in the light most favorable to the prosecution, is
supported by substantial evidence. United States v. Osborne,
514 F.3d 377, 385 (4th Cir. 2008). Substantial evidence in the
context of a criminal action is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
*
The jury also convicted Marak of sixteen counts of bribery
by corruptly accepting payments for performing an official act,
in violation of 18 U.S.C. § 201(c)(1)(B) (2006) (Counts Nineteen
through Thirty-five). The district court set aside these
convictions on the basis of Ball v. United States, 470 U.S. 856,
865 (1985), which holds in a case involving duplicitous
convictions that “the second conviction, even if it results in
no greater sentence, is an impermissible punishment.”
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support a conclusion of a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
A defendant bringing a sufficiency challenge bears a
“heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th
Cir. 1995). In evaluating the sufficiency of evidence, we do
not review the credibility of witnesses, and we assume the jury
resolved all contradictions in the testimony in favor of the
Government. United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). “Reversal for insufficient evidence is reserved for
the rare case ‘where the prosecution’s failure is clear.’”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
The Hobbs Act, 18 U.S.C. § 1951(a), makes it a crime
to commit robbery or extortion to obstruct, delay, or affect
commerce or the movement of any commodity in commerce. “A Hobbs
Act violation requires proof of two elements: (1) the
underlying robbery or extortion crime, and (2) an effect on
interstate commerce.” United States v. Williams, 342 F.3d 350,
353 (4th Cir. 2003).
In order to convict Marak for a violation of 18 U.S.C.
§ 201(b)(2)(C), the Government was required to prove: (1) Marak
was a public official of the United States, (2) Marak directly
or indirectly demanded, sought, received, accepted, or agreed to
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receive or accept something of value, and (3) Marak did so
corruptly in return for being induced to do or omit to do any
act in violation of his official duty. We have reviewed the
record and conclude that the evidence was sufficient to support
Marak’s convictions.
Marak also challenges his sentence. He asserts that
the district court erred in calculating the loss involved in his
offense under U.S. Sentencing Guidelines Manual (“USSG”)
§ 2B1.1(b)(1)(G), which provides for a 12-level enhancement for
a loss of more than $200,000 but less than $400,000. The
district court’s factual determinations that underlie its
calculation of loss must stand absent clear error. Elliott v.
United States, 332 F.3d 753, 761 (4th Cir. 2003). And, “only a
preponderance of the evidence need support these factual
findings.” United States v. Miller, 316 F.3d 495, 503 (4th Cir.
2003). Further, “[t]he court need only make a reasonable
estimate of the loss,” and its loss determination “is entitled
to appropriate deference,” given its unparalleled access to the
pertinent facts. USSG § 2B1.1, cmt. n.3(C).
We have thoroughly reviewed Marak’s challenges to the
district court’s loss calculation and are persuaded that the
district court made a reasonable estimate of the loss in this
case.
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Accordingly, we affirm Marak’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument will not aid the decisional
process.
AFFIRMED
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