United States v. Jeffery Armstrong ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFERY K. ARMSTRONG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cr-00304-GBL-1)
Submitted: June 20, 2012 Decided: August 22, 2012
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth M. Robinson, Eric H. Kirchman, Rockville, Maryland, for
Appellant. Neil H. MacBride, United States Attorney, Eric G.
Olshan, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffery Armstrong appeals his 18-month sentence and
restitution order in the amount of $129,153.19 after a jury
rendered a guilty verdict on nine counts of wire fraud in
violation of 18 U.S.C. § 1343. Armstrong contends that:
(1) the district court abused its discretion by granting the
government’s motion to limit cross-examination regarding the
existence of a hostile work environment; (2) there was
insufficient evidence to convict him of wire fraud; and (3) the
district court abused its discretion by denying his request for
a continuance so that he could replace retained counsel.
For the reasons that follow, we affirm the district
court’s sentence.
I.
Armstrong first challenges the district court’s
pretrial ruling limiting cross-examination of his former
supervisors concerning the existence of a hostile work
environment at the National Labor Relations Board (NLRB) and the
United Nations (UN), claiming that the court’s decision
improperly curtailed his Sixth Amendment right to explore the
witnesses’ bias and hostility toward him. Additionally,
Armstrong faults the trial court for denying him a line of
cross-examination focused on whether Armstrong had filed a
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complaint about his supervisor Bruno Henn’s purported hostility
toward Americans and African Americans. Limitations on cross-
examination of government witnesses are reviewed for abuse of
discretion. United States v. Scheetz, 293 F.3d 175, 184 (4th
Cir. 2002). In cases involving violations of a defendant’s
rights under the Confrontation Clause, a reviewing court will
not reverse a conviction based on improper limitation during
cross-examination so long as the error is harmless beyond a
reasonable doubt. United States v. Turner, 198 F.3d 425, 430
n.6 (4th Cir. 1999).
Because the district court afforded Armstrong ample
opportunity to cross-examine his supervisors with regard to
their personal biases, and because the court’s narrow rulings
merely limited cross-examination of irrelevant issues of general
workplace hostility, we cannot say that the district court
abused its discretion in granting the government’s request. As
such, Armstrong’s Sixth Amendment claim is without merit.
In any event, even if we were to find that the
district court abused its discretion when it limited Armstrong’s
cross-examination, and such a denial implicated Armstrong’s
rights under the Confrontation Clause, any such error was
harmless beyond a reasonable doubt. The jury had before it
ample evidence on which to determine Armstrong’s guilt aside
from Henn’s testimony. Moreover, any cross-examination of Henn
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regarding Armstrong’s allegations of racial and national bias
would have been cumulative of Armstrong’s own subsequent
testimony. Finally, the record contains no evidence to support
such a theory, and Armstrong’s attorney was free to question
Henn regarding his personal biases, notwithstanding the district
court’s limitations on Henn’s cross-examination.
II.
Armstrong next challenges the sufficiency of the
evidence to support his conviction. This claim is likewise
without merit.
In reviewing the sufficiency of the evidence
supporting a conviction, the standard of review is “whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This Circuit has
added that a defendant challenging the sufficiency of the
evidence supporting his conviction bears “a heavy burden,”
United States v. Hoyte, 51 F.3d 1239, 1245, (4th Cir. 1995), and
that a conviction must be upheld if the evidence, viewed in the
light most favorable to the government, supports the verdict.
See United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001).
In addition, where, as here, a defendant fails to challenge the
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government’s evidence pursuant to Federal Rule of Criminal
Procedure 29(a), following the close of the government’s case, a
reviewing court looks merely for plain error. United States v.
Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008).
Armstrong claims that the government failed to adduce
sufficient evidence that he committed wire fraud. In this
Circuit, wire fraud under 18 U.S.C. § 1343 requires “two
essential elements: (1) the existence of a scheme to defraud
and (2) the use of . . . wire communication in furtherance of
the scheme.” United States v. Curry, 461 F.3d 452, 457 (4th
Cir. 2006).
Viewing all of the evidence in the light most
favorable to the government, the record contains sufficient
proof -- by both direct and circumstantial evidence -- that
Armstrong devised and executed a scheme to defraud the UN and
the NLRB and employed a multitude of materially false
representations and omissions in order to succeed. Likewise, it
was reasonably foreseeable to Armstrong that he would reap the
rewards of his fraud via interstate direct deposits. As such,
under deferential plain error review, there was no error in the
jury’s guilt determination.
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III.
Finally, Armstrong contends that the district court
abused its discretion by denying his request for a continuance
on the eve of the trial so that he could substitute his retained
counsel with a different lawyer. Reviewing courts will only
find an abuse of the district court’s broad discretion if the
court acted unreasonably or arbitrarily in denying a continuance
so that the defendant can secure counsel of choice. Morris v.
Slappy, 461 U.S. 1, 11-12 (1983).
The record here establishes no such abuse of
discretion on the part of the district court. Indeed, numerous
factors counsel in favor of concluding that the trial court
acted well within its broad discretion when it denied
Armstrong’s motions and proceeded to trial. In light of the
timing of Armstrong’s motion, the routine nature of his dispute
with his lawyer, the uncertainty concerning who he would retain
as substitute counsel, the presence of competent local counsel,
and the significant inconvenience to the government and the
witnesses, the court’s decision was wholly reasonable.
Because the district court possessed multiple
legitimate grounds on which to base its denial of Armstrong’s
motion for a continuance, it did not act unreasonably or
arbitrarily. Armstrong cannot establish an abuse of the court’s
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discretion, and his claimed infringement of his right to counsel
under the Sixth Amendment is likewise without merit.
IV.
For the reasons set forth above, we affirm the
district court’s sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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