United States v. Uhrich , 228 F. App'x 248 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID ALLEN UHRICH,
Defendant - Appellant.
No. 05-4487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KELLY J. JOHNSTON,
Defendant - Appellant.
No. 05-4490
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDRIC D. LEFFLER,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. André M. Davis, District Judge. (CR-03-
10)
Argued: December 1, 2006 Decided: June 1, 2007
Before WILKINS, Chief Judge, WILKINSON, Circuit Judge, and Henry F.
FLOYD, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Norman L. Smith, FISHER & WINNER, Baltimore, Maryland;
Richard Christopher Bittner, Glen Burnie, Maryland; Andrew Radding,
ADELBERG, RUDOW, DORF & HENDLER, L.L.C., Baltimore, Maryland, for
Appellants. Joyce Kallam McDonald, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Gregory M. Kline, ADELBERG,
RUDOW, DORF & HENDLER, L.L.C., Baltimore, Maryland, for Appellant
Kelly J. Johnston. Jeffrey E. Nusinov, FISHER & WINNER, Baltimore,
Maryland, for Appellant Fredric D. Leffler. Rod J. Rosenstein,
United States Attorney, Stephen M. Schenning, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Kelly J. Johnston, Fredric D. Leffler, and David A. Uhrich
were convicted of charges relating to a scheme to defraud mortgage
lenders. Johnston brings her appeal asserting that the district
court erred by: 1) upholding the Magistrate Judge’s probable cause
determination and denying her motion to suppress certain evidence;
2) mismanaging discovery in the case and denying her motion for a
continuance; 3) denying her motion to sever; 4) denying her motion
for a new trial; 5) denying her motion for judgment of acquittal;
6) incorrectly calculating the amount of loss attributable to her;
and 7) allowing the government to ignore its statutory obligations
regarding restitution. Leffler also argues that the district court
erred in denying his motion to sever.
In Uhrich’s appeal, he contends that the district court erred
by 1) admitting evidence of certain real estate transactions and 2)
sentencing him in violation of the Sixth Amendment to the
Constitution.
We disagree with the arguments made by Appellants and, thus,
for the reasons stated below, affirm the judgment of the district
court.
I.
This case arises out of a scheme to defraud mortgage lenders,
organized and led by Walter P. Hammond. From 1997 through 1999,
3
Hammond purchased over 200 properties from long time Baltimore
landlords who wished to sell all or part of their portfolios of
rental row houses. (J.A. at 1373.) Hammond found investors who
agreed to become “buyers” of the houses in exchange for a payment
from Hammond of $1,000 to $2,000 per house. The price of the
houses averaged between $10,000 and $15,000 per house, and Hammond
typically sold the houses for $40,000. (J.A. at 1362.) The
mortgage lenders believed they were financing the purchase of the
properties by loaning eighty percent of the purchase price of a
house to a buyer/investor who was putting up twenty percent of the
purchase prices. (J.A. at 815, 1004, 1013, 1306-07, 1328.)
Hammond’s scheme revolved around the mortgage loan. The
purchase prices of the houses were supported by false appraisals.
(J.A. at 1363, 1369, 1508, 1511.) The appraisals were artificially
inflated through the use of comparable houses which, in fact, were
out of the neighborhood or purchased at inflated prices in other
schemes to defraud. (J.A. at 1093, 1363.) Mortgage brokers,
working with Hammond, created fraudulent mortgage applications,
listing false information. (J.A. at 1368-69.) These applications
were submitted to lenders along with the inflated appraisals.
Settlement on the sale of a house to Hammond and on the
subsequent sale of the same house from Hammond to an investor
usually took place on the same day. One hundred forty five of
Hammond’s properties were settled at Tower Title and Performance
4
Title, two title companies run and owned by Co-Defendant Kelly J.
Johnston. (J.A. at 1727-28.) Co-Defendant Fredric D. Leffler
served as the title companies’ lawyer. (J.A. at 1727-28.)
At settlements, investors promised the lenders to pay the
mortgages, while Hammond promised the investors that they did not
have to pay the mortgages. Hammond supplied the investors with
cashier’s checks in the amount of the down payment required at the
settlement table. At first, the down payment funds came from
Hammond’s earlier property sales. (J.A. at 1378.) However,
certain lenders did not require a cashier’s check at settlement.
For such lenders, the down payment funds were provided for in one
of two ways. At times, the loan proceeds paid to Hammond were
reduced by the down payment amount. At other times, Johnston
and/or Leffler directed the title company employees to break the
escrow and advance to Hammond lender funds which he then used to
purchase a cashier’s check in the name of the investor. (J.A. at
1379-81.)
Hammond utilized Co-Defendant David A. Uhrich to locate
investors and agreed to pay Uhrich a referral fee for any investors
Uhrich recruited. (J.A. at 1365.) When one such investor did not
have sufficient income to qualify for a mortgage loan, Uhrich
suggested that she inflate her income on loan applications by
falsely using his company as her employer to add additional income.
(J.A. at 1112-13.)
5
Uhrich borrowed $70,000 from another investor, Annette Porter,
to be used for the purchase of a house at 9499 Coral Crest Way,
Vienna, Virginia. (J.A. at 682-84, 715-16.) Uhrich was to repay
the $70,000 in three months. (J.A. at 682-84.) However, he was
unable to pay the money back. Instead, Uhrich offered Porter an
investment opportunity to make some money by becoming an investor
in Hammond’s scheme. (J.A. at 686.) Uhrich told Porter they could
open an account together and split the money paid by Hammond.
(J.A. at 689.)
Additionally, Uhrich and Hammond found large homes in which
they wished to live and titled the homes in the name of a fictional
buyer, Leandro Rivas. (J.A. at 715-16.) The homes were at 751
Intrepid Way, Davidsonville, Maryland, and at 9499 Coral Crest Way,
Vienna, Virginia. Hammond diverted proceeds from his scheme to
help purchase these homes, and Uhrich provided the loans and the
name Leandro Rivas.
Johnston was indicted on eighteen counts of mail and wire
fraud, convicted of five counts, sentenced to a period of
imprisonment of 27 months, and ordered to pay approximately $57,000
in restitution, among other penalties. Leffler was indicted on
seventeen counts of mail and wire fraud, convicted of all counts,
and sentenced to a period of imprisonment of 37 months. Uhrich was
indicted on four counts of mail and wire fraud, convicted of three
counts, sentenced to a period of imprisonment of 33 months, and
6
ordered to pay a $300 Special Assessment and approximately $82,000
in restitution. Each of these co-defendants now appeals.
II.
Johnston contends that the district court erred in upholding
the Magistrate Judge’s probable cause determination and denying her
motion to suppress certain evidence. We disagree.
A.
Although we make a de novo review of the denial of the motion
to suppress by the district court, the finding of probable cause by
the Magistrate Judge is entitled to great deference from this
Court. United States v. Wilhelm, 80 F.3d 116, 118-19 (4th Cir.
1996). Hence, our responsibility today is merely to make certain
that the Magistrate Judge “had a substantial basis for concluding
that probable cause existed.” Illinois v. Gates, 462 U.S. 213,
238-39, (1983) (alteration marks, internal quotation marks, and
citation omitted).
Search warrants must particularly describe the place to be
searched and the items to be seized. Andresen v. Maryland, 427
U.S. 463, 480 (1976). “[F]ishing expedition[s]” or “a random
exploratory search or intrusion” in violation of the
“particularity” requirement of the Fourth Amendment are disallowed.
United States v. Owens, 848 F.2d 462, 466 (4th Cir. 1988).
7
The Fourth Amendment mandates that there be probable cause to
support that seizable items will be found in the place that is to
be searched before a search warrant can properly issue. United
States v. Wylie, 705 F.2d 1388, 1391-92 (4th Cir. 1983). Probable
cause is “a fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238.
“[I]nvalidation of an entire search based on a seizure of
items not named in the warrant is an extraordinary remedy that
should be used only when the violations of the warrant’s
requirements are so extreme that the search is essentially
transformed into an impermissible general search.” United States
v. Robinson, 275 F.3d 371, 382 (4th Cir. 2001) (citation and
internal quotation marks omitted).
“A valid search warrant may issue only upon allegations of
facts so closely related to the time of the issue of the warrant as
to justify a finding of probable cause at that time. Whether the
proof meets this test must be determined by the circumstances of
each case.” United States v. McCall, 740 F.2d 1331, 1335-36 (4th
Cir. 1984) (internal quotation marks omitted).
B.
The search and seizure at issue here was made pursuant to a
search warrant issued by the Magistrate Judge, whose probable cause
determination was based upon the affidavit of FBI Special Agent
James Costigan.
8
Johnston asserts that the government failed to comply with the
particularity requirements outlined by this Court. According to
Johnston, the affidavit contains broad descriptions of documents to
be seized, with no effort made to tailor the description of
documents that would prove a criminal act.
Our review of the record, however, convinces us otherwise.
The affidavit in question goes to great length to detail: 1)the
actions of the appraiser and the mortgage broker in the scheme to
defraud, (J.A. 110-11); 2) information concerning the HUD-1
settlement documents (J.A. 112), including the identity of the
investors and details concerning their statements that they had
provided no funds at settlement (J.A. 114-5, 121, 126-7, 133, 138-
9); 3) the location where the settlements at issue occurred (J.A.
114, 126, 132, 136, 163-4); 4) the identity of the employees of the
title companies (J.A. 107, 114); 5) the employees who allegedly
conducted settlements with false HUD documents (J.A. 112, 114,
136), and 6) information regarding the relationship of Performance
Title as the successor of Tower Title. (J.A. 149.)
Therefore, contrary to Johnston’s contentions, it is hardly
disputable that probable cause existed for the Magistrate Judge to
find that evidence of fraud would be found at both of the title
company locations. Johnston next argues that the handwritten
interlineations in the affidavit supporting the search warrant
9
evidence that the Magistrate Judge ceased being “neutral and
detached.” We cannot agree.
Simply stated, Johnston’s bare allegation that the
interlineations demonstrate that the Magistrate Judge lacked
objectivity, without more, is an insufficient basis for us to find
that the search warrant was invalid. In fact, and as posited by
the government, we are of the firm belief that the interlineations
in the affidavit establish not that the Magistrate Judge ceased
being “neutral and detached” but instead that the Magistrate Judge
carefully considered the affidavit before deciding whether to issue
the search warrant.
As to Johnston’s contentions that the evidence seized was not
described with particularity and that too much time had passed
between the alleged crime and the search, we are unconvinced. Our
review persuades us that the subject search warrant was
sufficiently narrow in that it permitted the seizure of documents
associated only with Hammond, his corporations and his investors.
Accordingly, Johnston’s particularity argument fails.
Concerning Johnston’s staleness argument, we have earlier held
that “[t]he vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit.” McCall, 740
F.2d at 1336 (quoting United States v. Johnson, 461 F.2d 285, 287
(10th Cir. 1972)). “Rather, we must look to all the facts and
10
circumstances of the case, including the nature of the unlawful
activity alleged, the length of the activity, and the nature of the
property to be seized.” Id.The circumstances here are similar to those presented in
United States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004), in that
“all of the circumstances pointed toward a finding of probable
cause.” The allegations were “not mere isolated violations of the
law, but criminal activities of a protracted and continuous
nature.” Id. (alteration mark, citation, and quotation marks
omitted). Accordingly, Johnston’s staleness argument also fails.
III.
Johnston alleges that the district court erred by mismanaging
discovery and denying her motion for a continuance. This argument
is meritless.
A.
“Discovery matters are committed to the sound discretion of
the district court and an error in administering the discovery
rules is reversible only on a showing that the error was
prejudicial to the substantial rights of the defendant.” United
States v. Barnes, 634 F.2d 387, 390 (8th Cir. 1980) (citation
omitted).
The denial of a continuance is improper only when there is “an
unreasoning and arbitrary insistence upon expeditiousness in the
11
face of a justifiable request for delay. . . .” Morris v. Slappy,
461 U.S. 1, 11-12 (1983) (citation and internal quotation marks
omitted). Because the trial court enjoys great latitude in
managing its time, we review decisions regarding the trial calendar
for abuse of discretion. Id. at 12.
B.
Although the frustrations of defense counsel may be
understandable, Johnston has failed to provide any argument as to
how she was harmed by the government’s alleged discovery abuse.
Thus, because she has neglected to set forth that she was provably
prejudiced by the government’s alleged violations, we are unable to
find that the district court erred in managing the discovery in the
instant matter.
Regarding Johnston’s motion for a continuance, Johnston has
again failed to argue how she was prejudiced by the district
court’s denial of the request. Moreover, there is no evidence in
the record that the district court possessed “an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay. . . .” Morris, 461 U.S. at 11-12(citation and internal quotation marks omitted). Consequently, we
are unable to conclude that the district court improperly denied
the motion.
12
IV.
Johnston and Leffler aver that the district court erred in
denying their motions to sever. We are unconvinced.
A.
The district court’s decision to deny a motion to sever will
not be overturned “absent a showing of clear prejudice or abuse of
discretion.” United States v. Acker, 52 F.3d 509, 514 (4th Cir.
1995) (citation omitted).
Rule 14(a) provides that, “[i]f the joinder of offenses or
defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the defendants’ trials,
or provide any other relief that justice requires.” Fed. R. Crim.
P. 14(a).
“In ruling on a motion for severance, the trial court is
vested with discretion; it must carefully weigh the possible
prejudice to the accused against the often equally compelling
interests of the judicial process, which include the avoidance of
needlessly duplicative trials involving substantially similar
proof.” United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.
1977)(citing United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir.
1974)). “The exercise of this discretion will be overturned only
for clear abuse affecting substantial rights of the accused.” Id.13
(citing Cataneo v. United States, 167 F.2d 820, 823 (4th Cir.
1948)).
The district court has a “continuing duty at all stages of the
trial to grant severance if the requisite degree of prejudice
appear[s].” United States v. Spider, 800 F.2d 1267, 1273 (4th Cir.
1986 (citation omitted).
B.
Johnston makes two arguments as to how the district court
erred in denying her motion to sever. First, she maintains that
she was tried with multiple defendants regardless of her minor and
passive role in the alleged scheme. According to Johnston, much of
the evidence presented at trial against Johnston’s co-defendants
was totally unrelated to her, causing a serious risk that the jury
was unable to make a reliable judgment about her guilt or
innocence. We are unpersuaded.
The evidence at trial established that 135 checks from Tower
Title and 90 checks from Performance Title, totaling $3,730,625.49,
were issued to Hammond or his company during the course of the
fraudulent scheme. The evidence further demonstrates that Johnston
was the owner of the two title companies that handled most of the
fraudulent real estate transactions and that she participated in
some of the fraudulent transactions. Thus, even if Johnston was
not directly involved in all aspects of the fraudulent scheme, it
14
is clear that her criminal acts furthered the scheme. Therefore,
we find no undue prejudice here.
Second, Johnston argues that she was prejudiced by her joint
trial with Leffler, whose refusal to testify thwarted her ability
to fully and fairly defend herself. Thus, according to Johnston,
she was denied the availability of corroborating testimony
regarding advice of counsel from Leffler. Johnston fails, however,
to provide any reasonable basis for us to assume that Leffler would
have actually testified on her behalf at a separate trial or that
his testimony would have been profitable for her defense.
Accordingly, we find no reversible error in the district court’s
denial of the motion to sever on this basis.
C.
Concerning Leffler’s motion to sever, he alleges that
Johnston’s handwriting expert was called for no other purpose than
to attack Leffler on matters outside the indictment. According to
Leffler, Johnston employed the handwriting expert to suggest
Leffler’s involvement in matters outside the government’s case,
mainly the forgery of Johnston’s signature on certain checks that
were made payable to Leffler’s company, Arch Property Services
(ARP). The government had earlier raised questions about ARP for
reasons unrelated to the checks.
We have reviewed the record, however, and are unable find any
reversible error. Although neither the government nor Johnston
15
suggested that Leffler forged the checks, there can be no question
that there was an inference that Leffler was not entitled to the
funds that were deposited into his account. Nevertheless, having
“weigh[ed] the possible prejudice to the accused against the . . .
equally compelling interests of the judicial process, which
include[s] the avoidance of needlessly duplicative trials involving
substantially similar proof[,]” Jamar, 561 F.2d at 1106, we are
unable to conclude that the district court erred.
Leffler next maintains that Johnston’s testimony exculpated
Johnston while inculpating Leffler. According to Leffler,
Johnston’s testimony that she had in fact committed criminal acts,
but only in reliance of Leffler’s legal advice, prejudiced Leffler,
thus denying him a fair trial. We find this contention to be
without merit.
When the defendant neglects to demonstrate in what manner his
defense “is irreconcilable with that of his co-defendant, there is
no basis to grant the defendant’s motion for severance.” United
States v. Spitler, 800 F.2d 1267, 1272 (4th Cir. 1986) (citation
omitted).
Leffler’s counsel contended at trial that Leffler believed
that there were “legitimate business reasons” for his handling
Hammond’s real estate transactions in the manner that he did. (J.A.
399-401.) Thus, the jury was asked to believe that Leffler had no
criminal intent when he helped process the transactions. Leffler
16
also argues that he did not know of any of the illegal activities
associated with the scheme.
As to the question of criminal intent, we are unable to
fathom, and Leffler has failed to submit, how Leffler’s defense
that he believed Hammond’s strategy to be legitimate is
contradictory to Johnston’s defense that she relied on Leffler’s
guidance. Therefore, Leffler has failed to meet his burden as to
this issue.
Concerning Leffler’s asseveration that he lacked knowledge of
the illegal activities connected with the scheme, it is
indisputable that Leffler’s defense on this issue conflicts with
that of Johnston. “The mere presence of hostility among
defendants, however, or the desire of one to exculpate himself by
inculpating another are insufficient grounds to require separate
trials, and thus, antagonistic defenses do not per se require
severance even if the defendants attempt to cast the blame on each
other.” Spitler, 800 F.2d at 1271 (alteration marks, citations,
and quotation marks omitted).
“To make such showing where severance has been sought on the
ground of conflicting defenses, it must be demonstrated that the
conflict is so prejudicial that the differences are irreconcilable,
and that the jury will unjustifiably infer that this conflict alone
demonstrates that both are guilty.” Id. at 1272 (alteration marks,
17
citations, and quotation marks omitted). Leffler’s failure to make
such a showing is fatal to his argument on this issue.
V.
Johnston states that the district court erred in denying her
motion for a new trial. We find this contention to be unavailing.
A.
We review a district court’s denial of a Federal Rule of
Criminal Procedure 33 motion for an abuse of discretion. United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) “[A] court
should exercise its discretion to grant a new trial sparingly . .
. and . . . should do so only when the evidence weighs heavily
against the verdict.” Id. (internal quotation marks and citations
omitted).
B.
Simply stated, the evidence before us does not weigh heavily
against the verdict. In fact, the opposite is true. For instance,
each of the HUD statements in the real estate transactions was
false in as much as each listed the amount of money to be collected
from the buyer/borrower, although neither Johnston nor her
employees ever collected any of these funds. She also, on
occasion, fraudulently broke the escrow and disbursed the lender’s
funds to Hammond, who would then purchase a cashier’s check in the
borrower’s name. Thus, we are unpersuaded by Johnston’s arguments
18
on this issue. We also find Johnston’s arguments concerning
inconsistent verdicts futile. Hence, from our exhaustive review of
the record in this matter, we are unable to conclude that the
district court erred in denying this motion.
VI.
Johnston maintains that the district court erred in denying
her motion for judgment of acquittal. We are unpersuaded.
A.
We review de novo a district court’s denial of a motion for
judgment of acquittal. United States v. Gallimore, 247 F.3d 134,
136 (4th Cir. 2001).
To determine if there was sufficient evidence to support a
conviction, we consider whether, taking the evidence in the light
most favorable to the government, substantial evidence supports the
jury’s verdict. Glasser v. United States, 315 U.S. 60, 80 (1942)
(“The verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it.”).
Substantial evidence is defined as “that evidence which ‘a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.
2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)). We review both the direct and circumstantial evidence and
19
accord “the government the benefit of all reasonable inferences
from the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citation
omitted).
When reviewing claims of sufficiency of the evidence, “[t]he
relevant question is not whether the appellate court is convinced
of guilt beyond a reasonable doubt, but rather whether, viewing the
evidence in the light most favorable to the government, any
rational trier of facts could have found the defendant guilty
beyond a reasonable doubt.” Tresvant, 677 F.2d at 1021 (citations
omitted).
B.
As we have already observed, even if Johnston was not directly
involved in all aspects of the fraudulent scheme, it is clear that
her criminal acts furthered the scheme. She owned the title
companies that participated in the scheme and profited from the
illegal activity. Without her participation, the scheme would not
have succeeded. Therefore, we find no error in the district court’s
denial of this motion.
Johnston also argues that the district court’s decision to
reverse the order of counsel’s closing argument as another reason
that it should have granted Johnston a new trial. Johnston
maintains that her defense was, in large measure, dependant upon
the order of the closing argument. Johnston, however, neglects to
posit how her counsel’s argument would have differed if the order
20
had been as Johnston wished. Hence, we have no basis on which to
determine error.
VII.
Johnston asserts that the district court incorrectly
calculated the amount of loss attributable to her. According to
Johnston, the only evidence submitted by the government in support
of the loss number was flawed. Moreover, Johnston argues that she
was not provided with an opportunity to fairly litigate the issue
of loss at her sentencing. We are unpersuaded.
A.
When reviewing the loss amount calculated by the district
court, we review the factual findings of the district court for
clear error, and its legal interpretation of the Sentencing
Guidelines de novo. United States v. Parsons, 109 F.3d 1002, 1004
(4th Cir. 1997).
B.
The government presented evidence that the loss was between
$2.5 million and $5 million, but the district court found it was
between $1.5 million and $2.5 million; thus increasing the base
level offense by 12 levels. Johnston fails, however, to reveal
what she thinks the amount of loss to be. Given the facts of this
case, we conclude that the district court made a reasonable
estimate in making its loss calculation.
21
With adjustments for abuse of a position of trust and more
than one victim/more than minimal planning, the Sentencing
Guidelines calculation came to a level 22, with a sentencing range
of 41-51 months. The district court departed downward, however, to
correct sentencing disparity between the defendants. We find no
error.
VIII.
Johnston maintains that the district court erred by allowing
the government to ignore its statutory obligations regarding
restitution. We find this error to be harmless.
A.
We review a restitution order for an abuse of discretion.
United States v. Vinyard, 266 F.3d 320, 333 (4th Cir. 2001).
B.
It appears that the restitution information was not included
in Johnston’s presentence report as required by 18 U.S.C. § 3664.
Nevertheless, testimony at trial and the business records were the
basis for the district court’s restitution determination. Thus,
because Johnston had notice as to the amount of the restitution, as
well as to whom it was payable, we are unable to find any
reversible error. See United States v. Dando, 287 F.3d 1007, 1010
(10th Cir. 2002) (“Defendant ... received the functional equivalent
of the notice required by the statute.”); United States v.
22
Catoggio, 326 F.3d 323, 329-30 (2d Cir. 2003) (rejecting
defendant’s argument that because an order of restitution must be
entered within 90 days of sentencing, the court should vacate the
restitution order without remanding for further proceedings).
Moreover, because Johnston fails to demonstrate actual
prejudice from the government’s failure to comply with the
procedural requirements of § 3664, we are unable to find any error
by the district court to be more than harmless.
[T]he purpose behind the statutory ninety-day limit on
the determination of victims’ losses is not to protect
defendants from drawn-out sentencing proceedings or to
establish finality; rather, it is to protect crime
victims from the willful dissipation of defendants’
assets.... Mindful of these goals, we have ruled that a
district court’s failure to determine identifiable
victims’ losses within ninety days after sentencing, as
prescribed by § 3664(d)(5), will be deemed harmless error
to the defendant unless he can show actual prejudice from
the omission.
United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004). See
also United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir. 2005)
(stating that the failure to abide by the ten-day limit in section
3664(d)(5) is harmless error absent a showing of prejudice); United
States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000) (noting that
not affording a defendant an opportunity to be heard as to the
proposed amount of restitution within the ninety days prescribed by
§ 3664(d)(5) is harmless error because “the court provided him
ample opportunity to object to the amount thereafter”); United
States v. Grimes, 173 F.3d 634, 638-39 (7th Cir. 1999) (holding
23
that because intended beneficiaries of § 3664(f)(1)(A) are victims,
defendants have no rights under § 3664 and trial court’s failure to
name all of the victims in the restitution order is not error).
IX.
Uhrich submits that the district court erred in admitting
evidence of certain real estate transactions. We reject the
argument.
A.
The Court reviews an alleged error in the admission of
evidence for an abuse of discretion. United States v. Gravely, 840
F.2d 1156, 1162 (4th Cir. 1988).
B.
Uhrich argues that the district court erred in admitting
evidence concerning the Interprid Place and Coral Crest real estate
transactions in violation of Rule 404(b) of the Federal Rules of
Evidence. Our review of the record, however, convinces us that the
district court admitted the evidence as “a part of a scheme that’s
alleged in the indictment . . . .” (J.A. 247 O-247 P.)
The record evidences that Hammond and Uhrich found large homes
in which they wished to live, Interprid Place and Coral Crest
respectively. Hammond then diverted proceeds from his fraudulent
scheme to help purchase these homes, and Uhrich provided the loans
and the name Leandro Rivas, a fictional buyer.
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Uhrich also borrowed $70,000 from investor/buyer Annette
Porter, and then used those funds, along with money from Hammond,
to buy Carol Crest. As a result, the mortgage lenders were left
with mortgage notes signed by Rivas, a non-existent person. Uhrich
also recruited other investors for Hammond’s fraudulent scheme.
The Interprid Way and Coral Crest purchases provide
overwhelming evidence of the criminal relationship between Hammond
and Uhrich. Hammond may have led the fraudulent scheme, but it is
clear that Uhrich was a part of it. Accordingly, we can find no
error as to the district court’s admission of this evidence.
X.
According to Uhrich, he was sentenced in violation of the
Sixth Amendment to the Constitution. We are unable to agree.
A.
Consistent with the mandate of United States v. Booker, 543
U.S. 220 (2005), we follow the unreasonableness standard in our
review of an original sentence. United States v. Hughes, 401 F.3d
540 (4th Cir. 2005); United States v. Green, 436 F.3d 449 (4th Cir.
2006); United States v. Davenport, 445 F.3d 366 (4th Cir. 2006).
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B.
Uhrich contends that the district court violated his Sixth
Amendment rights by relying on facts that were not found by the
jury nor admitted by Uhrich; specifically, the amount of loss
arising out of Interprid Way. Consequently, according to Uhrich,
the district court imposed an improper sentence.
This argument, however, contradicts the statement of Uhrich’s
counsel at Uhrich’s sentencing hearing when he stated that the
amount of loss for Interprid Way was not included in the amount of
loss attributed to Uhrich. (J.A. 2630.) Instead, the amount of
loss appears to have been wholly based on the losses resultant in
the actions of the investors whom Uhrich recruited to participate
in the fraudulent scheme. Id. Therefore, we reject this argument.
Uhrich also maintains that his sentence is unreasonable
pursuant to Davenport. As the district court stated, however,
[W]hile I think the government has made a very
substantial showing that would justify the Court’s
conclusion that the amount of loss was more than $800,000
in Mr. Uhrich’s case, out of an abundance of caution, in
an effort to give the defendant absolutely the benefit of
any doubt, not just reasonable doubt, I am going to go to
the next level and treat Uhrich as having caused the
loss, foreseen and contemplated a loss of more than
$500,000 but not more than $800,000.
So, that will reduce the final offense from a level 19,
subject to any other consideration, from a level 19 to a
level 18.
(J.A. 2632.) Based on Uhrich’s criminal history category III, his
final guideline range was 33-41 months. The trial court imposed a
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33 month sentence. Hammond, the mastermind of the fraudulent
scheme, was given a 37 month sentence.
Comparing the roles of Hammond and Uhrich, it may appear at
first blush that Uhrich’s sentence is unreasonable. We observe,
however, that Hammond pled guilty, cooperated with the government,
and testified at trial, thus reducing his offence level. Also,
unlike Uhrich, Hammond had no prior convictions. Hence, we find
the sentence to be reasonable.
XI.
Accordingly, for the foregoing reasons, we affirm the judgment
of the district court.
AFFIRMED
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