United States v. Bennie MacK Jr. , 455 F. App'x 323 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5056
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE A. MACK, JR.,
Defendant - Appellant.
No. 10-6648
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE A. MACK, JR.,
Defendant - Appellee.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00267-WLO-1)
Submitted: October 31, 2011 Decided: November 29, 2011
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. John W. Stone, Jr., Acting
United States Attorney, Frank J. Chut, Jr., Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bennie A. Mack, Jr. appeals his conviction and
sentence of 135 months in prison after a jury convicted him of
eleven counts of wire fraud in violation of 18 U.S.C. § 1343(2006). Mack’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion,
there are no meritorious grounds for appeal, but raising
numerous issues. Mack has filed a pro se supplemental brief and
a pro se reply brief. We dismiss the appeal in part, and we
affirm the district court’s judgment.
Mack first contends the district court judge erred in
failing to recuse himself. We review this issue for abuse of
discretion. See United States v. Cherry, 330 F.3d 658, 665 (4th
Cir. 2003). A judge has a general duty to disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned. 28 U.S.C. § 455(a) (2006); Belue v. Leventhal, 640
F.3d 567, 572 (4th Cir. 2011). He should also disqualify
himself where he has a personal bias or prejudice concerning a
party, and when he has a financial interest in the subject
matter in controversy that could be substantially affected by
the outcome of the proceeding. 28 U.S.C. § 455(b) (2006).
Judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. Liteky v. United States,
510 U.S. 540, 555 (1994). A judge is not disqualified because
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he has been sued by a defendant in a criminal case. United
States v. Watson, 1 F.3d 733, 735 (8th Cir. 1993). “[R]ecusal
decisions reflect not only the need to secure public confidence
through proceedings that appear impartial, but also the need to
prevent parties from too easily obtaining the disqualification
of a judge, thereby potentially manipulating the system for
strategic reasons.” Belue, 640 F.3d at 574. We have reviewed
the record and conclude that the district court judge did not
abuse his discretion in not recusing himself.
Mack next claims he was prejudiced by the conflict of
interest of his former standby counsel. We may address a claim
of ineffective assistance of counsel on direct appeal only if
the lawyer’s ineffectiveness conclusively appears from the
record. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). To prevail on a conflict claim, a defendant must
prove both “that his attorney labored under an actual conflict
of interest and that the attorney’s conflict adversely affected
his representation.” Stephens v. Branker, 570 F.3d 198, 209
(4th Cir. 2009). If he does so, then prejudice is presumed.
Id. “Adverse effect cannot be presumed, however, from the mere
existence of a conflict of interest.” Id. We conclude the
record does not conclusively show counsel was ineffective.
Mack next contends that the district court erred in
denying his motion to dismiss a juror for cause. “It is well-
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settled, of course, that an accused is entitled under the Sixth
Amendment to trial by a jury composed of those who will adhere
to the law and fairly judge the evidence.” United States v.
Smith, 451 F.3d 209, 219 (4th Cir. 2006). Deference is due to
the district court’s conclusions on that question, and the
burden of proving partiality is upon the challenger. United
States v. Turner, 389 F.3d 111, 117-18 (4th Cir. 2004). We
review the district court’s refusal to excuse a juror for abuse
of discretion. United States v. Capers, 61 F.3d 1100, 1104 (4th
Cir. 1995). We have reviewed the record and conclude that the
district court did not abuse its discretion.
Mack next contends the district court erred in denying
his Fed. R. Crim. P. 29 motion based on sufficiency of the
evidence. We review a district court’s denial of a motion for
judgment of acquittal de novo. United States v. Hickman, 626
F.3d 756, 762 (4th Cir. 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) (internal quotation marks and citations omitted).
Substantial evidence in the context of a criminal action is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
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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 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 elements of wire fraud under 18 U.S.C. § 1343(2006) are: (1) existence of a scheme to defraud; (2) involving
a material misrepresentation; and (3) use of wire communications
in furtherance of that scheme. Neder v. United States, 527 U.S.
1, 25 (1999); United States v. Allen, 491 F.3d 178, 185 (4th
Cir. 2007). To establish a scheme to defraud, the Government
must prove that the defendant acted with the specific intent to
defraud, which may be inferred from the totality of the
circumstances and need not be proven by direct evidence. United
States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001). A person’s
plan to convert funds to his personal use after representing
they will be used for others constitutes a scheme to defraud.
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See United States v. Hawkey, 148 F.3d 920, 924 (8th Cir. 1998).
“‘The intent to repay eventually is irrelevant to the question
of guilt for fraud.’” Allen, 491 F.3d at 186 (citations
omitted). We have reviewed the record and conclude that the
evidence was sufficient to support the convictions.
Mack next contends that a law enforcement officer
destroyed exculpatory evidence, and the district court erred in
denying his motion to dismiss the indictment. After an
evidentiary hearing, the district court found that although Mack
did give an officer some documents to copy, and they were lost,
there was no evidence they were exculpatory in nature, that the
officer acted in bad faith, or that Mack was unable to obtain
comparable evidence by other reasonably available means.
We review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). The duty to
preserve evidence arises when the evidence “both possess[es] an
exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” California v. Trombetta, 467 U.S. 479, 488-89
(1984). “[U]nless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.”
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Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Bad faith
“requires that the officer have intentionally withheld the
evidence for the purpose of depriving the plaintiff of the use
of that evidence during his criminal trial.” Jean v. Collins,
221 F.3d 656, 663 (4th Cir. 2000). We have reviewed the record
and conclude that the district court did not err in denying
Mack’s motion to dismiss the indictment.
Mack next contends he was denied complete discovery or
adequate access to discovery, and the district court erred in
denying him a second continuance to review discovery materials.
We review a district court’s decision under Fed. R. Crim. P. 16
for abuse of discretion. United States v. Caro, 597 F.3d 608,
616, 621-22 (4th Cir. 2010). A defendant must establish
prejudice to obtain reversal of a conviction for a discovery
violation. United States v. Chastain, 198 F.3d 1338, 1348 (11th
Cir. 1999). We review the denial of a motion to continue for
abuse of discretion; and even if abuse is found, a defendant
must show that the error prejudiced his case in order to prevail
on appeal. United States v. Williams, 445 F.3d 724, 739 (4th
Cir. 2006). We have reviewed the record and conclude that the
district court did not abuse its discretion.
Mack next claims he was subjected to unconstitutional
double jeopardy when the state referred his case to the
Government for prosecution. We conclude that this claim is
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without merit. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985);
United States v. Lanza, 260 U.S. 377, 384 (1922); United
States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006); United
States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003).
Mack next claims that he was denied the right to call
and cross-examine witnesses due to the district court’s denial
of his requests under Fed. R. Crim. P. 17(b) and its evidentiary
rulings. The grant or denial of a request for subpoenas under
Rule 17(b) is vested in the sound discretion of the district
court, and the district court may deny a motion for compulsory
production of witnesses who cannot offer relevant evidence.
United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 1982).
We review a district court’s evidentiary rulings for
abuse of discretion and will only overturn an evidentiary ruling
that is arbitrary and irrational. United States v. Cole, 631
F.3d 146, 153 (4th Cir. 2011). District courts retain wide
latitude to impose reasonable limits on cross-examination based
on concerns about, among other things, harassment, confusion of
the issues, and interrogation that is repetitive or only
marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). We have reviewed the record and conclude that the
district court did not abuse its discretion.
Mack’s remaining issues are sentencing issues. He
contends the district court erred in calculating loss under U.S.
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Sentencing Guidelines Manual § 2B1.1(b)(1) (2008); in finding he
abused a position of trust under USSG § 3B1.3; in finding he
obstructed justice under USSG § 3C1.1; in finding his offense
involved sophisticated means under USSG § 2B1.1(b)(9)(C); in
denying his request for downward departure based on time served;
and in calculating his criminal history category.
We review a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error, such as improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the sentence is
procedurally reasonable, we then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51.
In determining whether the district court properly
applied the advisory Guidelines, we review its legal conclusions
de novo and its factual findings for clear error. United
States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). We presume
a sentence within a properly calculated Guidelines range is
reasonable. Allen, 491 F.3d at 198. In sentencing, the
district court should first calculate the Guidelines range and
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give the parties an opportunity to argue for whatever sentence
they deem appropriate. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007). The district court should then consider
the relevant § 3553(a) factors to determine whether they support
the sentence requested by either party. Id. When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case. Carter, 564 F.3d at 328, 330.
We have reviewed the record and conclude that the
district court properly calculated Mack’s advisory Guidelines
range, and his sentence is reasonable. To the extent that he
challenges the district court’s decision to deny a downward
departure, this decision is not reviewable and we dismiss this
portion of the appeal. See Allen, 491 F.3d at 193. To the
extent that he challenges the district court’s decision not to
sentence him below his advisory Guidelines range, we conclude
that the district court did not abuse its discretion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss the appeal in part, and we affirm
the district court’s judgment. We deny Mack’s pro se motions to
proceed pro se on appeal and to strike the Anders brief. We
deny appellate counsel’s motion to withdraw without prejudice to
him refiling the motion at the appropriate time.
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This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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