United States v. Agnew ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4685
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARBARA MURPHY AGNEW,
Defendant - Appellant.
No. 04-4686
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL RAYMOND AGNEW,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-02-109)
Argued: May 27, 2005 Decided: September 2, 2005
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Aaron Michael Street, BAKER BOTTS, Houston, Texas, for
Barbara Murphy Agnew and Michael Raymond Agnew. Stephen Westley
Haynie, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for the United States. ON
BRIEF: Paul F. Enzinna, BAKER BOTTS, Washington, D.C., for Barbara
Murphy Agnew and Michael Raymond Agnew. Paul J. McNulty, United
States Attorney, Michael J. Elston, Assistant United States
Attorney, Norfolk, Virginia, for the United States.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Michael and Barbara Agnew (the “Agnews”) appeal their
convictions following a bench trial of eleven counts of bank fraud,
one count of embezzlement, one count of conspiracy to commit
embezzlement, three counts of money laundering and one count of
conspiracy to commit laundering. They were each sentenced to
twenty-four months’ imprisonment, followed by five years of
supervised release.1 The Agnews challenge the district court’s
denial of their motion for a new trial based upon newly discovered
evidence of judicial bias and the denial of their motion for a
judgment of acquittal. For the reasons that follow, we affirm.
I.
The factual underpinnings of this appeal appear largely
undisputed. However, since this is an appeal from the denial of a
motion for a judgment of acquittal based on insufficiency of the
evidence, we recite the evidence in the light most favorable to the
government. United States v. Gallimore, 247 F.3d 134, 136 (4th
Cir. 2001).
After working for a construction contractor for a number of
years, Michael Agnew left to start his own company in 1986. He
1
In their brief, the Agnews argued that the sentences violated
their Sixth Amendment rights as set forth in Blakely v. Washington,
124 S. Ct. 2531 (2004). The Agnews subsequently filed an unopposed
motion to dismiss their appeal with respect to the sentencing
issues, which we granted by order entered April 15, 2005.
3
created AGM Development Corporation (“AGM”), a Virginia entity
located in Virginia Beach. Michael Agnew was the sole stockholder,
director and president. Barbara Agnew served as secretary and
treasurer. AGM engaged in the business of installing concrete
foundations and building concrete structures, usually as a
subcontractor under a construction contract awarded to a general
contractor.
In the construction industry, subcontractors frequently have
to wait a long time for the general contractor to pay their
invoices. To meet cash flow needs in the interim, companies like
AGM will often transfer their invoices for work performed on behalf
of a general contractor to a financial institution. The financial
institution will then provide the subcontractor with a loan or line
of credit against the accounts receivable, less a fee and a
percentage that it holds back as a reserve against the invoices
being disputed in whole or in part.
The first financial institution with which the Agnews worked
was Reservoir Capital (“Reservoir”), a so-called “factoring”
service based in Baltimore, Maryland. Under the factoring
agreement, Reservoir selected which invoices it would purchase,
against which it charged a fee of approximately 3% and retained a
reserve of 20%.
In 1995, Resource Bank (“Resource”), an FDIC-insured
institution also located in Virginia Beach, approached AGM about
4
participating in its new Cash Flow Management (“CFM”) Program. The
Agnews acknowledge that, on paper, the CFM was similar to its
agreement with Reservoir. Significantly, it provided that AGM
could only submit “valid” invoices that were actually due from a
general contractor, for which Resource would pay in full, less a
fee and reserve charge.
There were, however, advantages to Resource’s proposal.
Resource charged lower fees and reserve amounts; it operated as an
invisible entity in AGM’s financing, whereas Reservoir had frequent
contact with AGM’s contractors; and, finally, working with a bank
entailed greater flexibility in terms of financing. As a result,
the Agnews paid a severance fee to terminate the agreement with
Reservoir and AGM became a client of Resource through its CFM
program in January of 1996.
During the course of AGM’s relationship with Resource, Michael
Agnew signed several iterations of the CFM agreement. They all,
however, contained numerous references to the requirement that the
invoices submitted must be “valid,” i.e., they must reflect “the
terms of a non-cash sale of goods or provisions of services
previously made by the Business to a Customer.” J.A. 979, 2910.2
2
CFM documentation was replete with provisions to the effect
that by submitting an invoice AGM was “making a legal
representation to the bank that all receivables assigned and sold.
. .are valid,” that a valid invoice had to be a “bona fide and
existing obligation” of AGM customers, and that submitting
fraudulent invoices could lead to criminal sanctions. J.A. 981,
1914, 2922.
5
Despite the unambiguousness of the CFM agreement, however, by
September of 1996 AGM had begun to submit invoices for work that
had not been performed. In fact, according to Barbara Agnew, AGM
submitted several series of invoices for the entirety of large
subcontracting jobs over a period of days or weeks, up to the full
amount of the contract for which they received payment from
Resource, despite the fact that the general contractor did not make
good on those invoices until much later. The Agnews explained this
course of conduct by claiming it to be their understanding that
Resource was willing to advance the full amount of a contract, even
though the work remained outstanding and the governing documents
specifically proscribed such payment.
Eventually, however, this practice caught up with AGM, as its
expenses outpaced the growth of its business and it began to
experience financial difficulties. After several shortfalls
prompted Resource to charge $3 million to AGM’s reserve account,
Resource sent an audit letter to one of AGM’s general contractors,
Ritchie Curbow Construction Company (“RCCC”) in June of 1999. The
letter requested information regarding invoices reflecting $243,000
in services AGM rendered to RCCC. RCCC replied that it owed AGM
nothing, explaining that while it had bid on a project and promised
AGM the concrete subcontract, its bid had been rejected. Rather
than defaulting AGM on the CFM program, Resource charged this
amount to AGM’s reserve account.
6
As AGM’s financial condition deteriorated, it appears that the
Agnews withheld payments from their employees’ 401(k) plans. It
was these actions that would form the basis of the embezzlement
charges. The evidence reflects that Debbie Lundberg, AGM’s office
manager, regularly sent employees’ 401(k) witholding checks to
Putnam Investments (“Putnam”) until the summer of 1998. At that
point, Barbara Agnew instructed her to cease sending them due to
AGM’s cash shortage. When Ms. Lundberg subsequently asked about
sending a check off, Mrs. Agnew responded, “Just hold on to it
until further notice.” J.A. 568. In March of 1999, a Putnam
representative contacted Ms. Lundberg to inquire about the missing
contributions. When she brought the issue to Mrs. Agnew’s
attention, she responded, “I guess I’ll have to deal with it now.”
J.A. 570-71.
Lundberg’s testimony is bolstered by that of a long time
friend and work colleague of the Agnews, Dan Des Roches, who
realized that he had not been receiving any commissions for the AGM
plan. He contacted Mrs. Agnew, who responded that Ms. Lundberg,
who had resigned, had perhaps not taken care of it. Mr. Des Roches
then suggested that Mrs. Agnew participate in a conference call
with Putnam, which she did. Mrs. Agnew reached an agreement with
Putnam whereby she agreed to pay for the missed contributions since
May 1998, approximately $27,000, and to resume making monthly
7
contributions. However, she never did resume payments, and failed
to return Putnam’s calls following up on the agreement.
Also during the period before AGM’s closing, one of AGM’s
project managers, Jack Ellenor, specifically asked Michael Agnew to
look into why his 401(k) plan was not being funded. Mr. Agnew
responded that he “would take care of it,” although no further
contributions were made. J.A. 550.
AGM’s financial condition continued to worsen. By July
of 1999, it became clear that AGM had $3.3 million outstanding on
invoices submitted through Resource’s CFM program. Resource
attempted to rectify this by extending a line of credit for the
roughly two-thirds of that which represented work to be performed
in the future, whereas the remainder was handled through the CFM
program. It later became clear, however, that AGM had also
incurred in excess of $1 million in federal and state tax
liabilities. On August 6, 1999, AGM closed its doors when it was
unable to meet its payroll.
An FBI agent contacted Resource Bank upon reading about AGM’s
collapse in the media, and the criminal prosecutions ensued. The
Agnews requested a bench trial, and on July 11, 2003, the district
court annnounced its verdicts orally from the bench. The court
found both defendants guilty of eleven counts of bank fraud, one
count each of conspiracy to embezzle and of embezzlement, three
8
counts of money laundering and one count of money laundering
conspiracy.
The Agnews’ Presentence Report (“PSR”) provided a guideline
loss figure of $3,088,683.95, with a total offense level of 31,
which carried a range of 108 to 135 months imprisonment. In
sentencing the Agnews, the district court noted, among other
things, that the Agnews are “exceptionally devoted to their
children” and “play an extremely important role in their children’s
lives.” J.A. 2493. He also noted that their case was “perhaps one
of the most benign cases of fraud the Court has ever seen.” J.A.
2490. On those and other grounds, on August 13, 2004, the district
court concluded that the Agnews were entitled to a significant
downward departure, to an offense level of 17, with a sentencing
range of 24 to 30 months. He then entered judgment at the lower
end of that range, sentencing the Agnews to 24 months imprisonment,
and provided that they could serve staggered sentences (overlapping
by one year) to minimize the amount of time their children would be
without a parent.
The Agnews filed a motion for judgment of acquittal in
December of 2003, which the district court denied by order dated
February 3, 2004.
In mid-July of 2004, the Agnews learned that the district
judge had been involved in a business partnership with A. Russell
Kirk and Daniel Hoffler, two individuals adversely affected by
9
their actions. Kirk was a member of the Board of Directors of
Resource Bank and its third largest shareholder. Daniel Hoffler
was President of Armada Hoffler, one of the general contractors for
whom AGM regularly performed work. From 1983 to late 1991 or early
1992, Kirk, Hoffler and the judge (who was then in private
practice) were partners in an enterprise established to own and
operate an office building.
On September 1, 2004, the Agnews filed a pro se motion for a
new trial based on newly discovered evidence pursuant to Federal
Rule of Criminal Procedure 33. The Agnews argued that had they
known of the judge’s prior relationship with Kirk and Hoffler, they
would not have waived their right to a jury trial and submitted to
a bench trial. They therefore sought a new trial on the ground
that their waiver was not knowing and voluntary.
The district court entered an order denying the motion on
September 3, 2004. The court concluded that the defendant’s motion
for a new trial was not based on “newly discovered evidence” within
the meaning of Rule 33(b). The significance of this conclusion is
that a motion for a new trial under Rule 33(b) based on newly
discovered evidence must be filed within three years after the
verdict. Fed. R. Crim. P. 33(b). A motion for a new trial based
on any other reason “must be filed within seven (7) days after the
verdict or finding of guilty.” Id. Concluding that the motion was
not based on newly discovered evidence, the court held that the
10
Agnew’s motion for a new trial, which was filed more than a year
after they were found guilty, was untimely.
The district judge nevertheless attached an affidavit to the
September 3 order, responding to the allegations of bias and
affirming that the facts referred to had no bearing on his verdict.
He stated that prior to the trial, he had no knowledge of Resource
Bank, who owned stock in it or the composition of its Board of
Directors. With respect to the business relationship with Kirk and
Hoffler, the judge stated that the partners in the law firm with
which he was affiliated in the 1980's became involved in a
partnership to construct an office building. The original
partnership consisted of sixteen members, twelve of whom were
partners in the firm, and four of whom were outside “developing
partners.” Kirk and Hoffler were two of the developing partners.
The judge stated that to the best of his knowledge, he had never
met Kirk, did not recognize the name, and had no recollection of
the partnership or involvement with it after January of 1992.
The Agnews timely appealed the denials of their motions for
judgment of acquittal and for a new trial.
II.
A.
The Agnews moved for a new trial under Rule 33 based on the
fact that their jury trial waiver was made without knowledge of the
11
trial judge’s potential conflict of interest. This motion
collapses into a determination of whether the apparent conflict
mandated the judge’s recusal. “[I]f [the facts suggesting bias]
are not sufficiently grave to require disqualification of the judge
under 28 U.S.C. § 455 they could not qualify as circumstances
requiring the judge's Sua sponte reconfirmation of an earlier
waiver.” Wyatt v. United States, 591 F.2d 260, 265 (4th Cir.
1979). Accordingly, we review the Rule 33 motion to determine
whether the alleged partiality or bias rises to the level requiring
recusal. If it does not, then the district judge did not err in
denying the Rule 33 motion. We review the district court’s
decision to deny the Agnew’s Rule 33 motion for a new trial based
on partiality or bias for an abuse of discretion. United States v.
Wilson, 118 F.3d 228, 237 (4th Cir. 1997).
As a threshold matter, the Agnews dispute the district court’s
conclusion that their motion was not based on newly discovered
evidence.3 Having reviewed the record of this case carefully, we
conclude that the information about the district judge’s prior
relationship with Kirk and Hoffler was “newly discovered” for
purposes of Rule 33.4 The district judge, however, did not abuse
3
As noted above, under the plain language of Rule 33, the
motion would be timely if it were based on newly discovered
evidence, but untimely if it were not. Fed. R. Crim. Pro. 33.
4
We base our conclusion that the judge’s prior relationships
should be considered “newly discovered evidence” on a careful
review of the facts of this case in light of existing analogous
12
his discretion in denying the motion, because the alleged
partiality or bias does not rise to the level requiring recusal.
“Any . . . judge . . . of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455. In determining
whether a judge’s impartiality might reasonably questioned, we
apply an objective test. United States v. Cherry, 330 F.3d 658,
665 (4th Cir. 2003). “‘The inquiry is whether a reasonable person
would have a reasonable basis for questioning the judge's
impartiality, not whether the judge is in fact impartial.’” Id.(quoting In re Beard, 811 F.2d 818, 827 (4th Cir. 1987)). Of
course, “[a] presiding judge is not . . . required to recuse
himself simply because of ‘unsupported, irrational or highly
tenuous speculation.’” Id. (quoting United States v. DeTemple, 162
F.3d 279, 287 (4th Cir. 1998)). Nor must a presiding judge “recuse
himself simply because he possesses some tangential relationship to
the proceedings.” Id. Such overly-cautious recusals would
improperly allow litigants to exercise a “negative veto” over the
assignment of judges merely by asserting the attenuated hint of
circuit precedent. See Holmes v. United States, 284 F.2d 716 (4th
Cir. 1960), in which we addressed a request for a new trial based
on evidence of an improper communication by a court official to
members of a jury, and held that the generally applicable standard
governing whether new evidence bears upon a substantive issue of
guilt should not apply when the new evidence “bears instead upon
the integrity of the jury’s verdict in the completed trial.” Id.
at 720.
13
impropriety. See DeTemple, 162 F.3d at 287. Instead, the judge
must simply ask “whether another with knowledge of all of the
circumstances might reasonably question the judge's impartiality."
Cherry, 330 F.3d at 665 (internal quotation omitted).
Comparing the facts of this case with relevant precedent
demonstrates that the district judge did not abuse his discretion
by refusing to recuse himself in this case. In In re Beard, 811
F.2d at 828, the judge was the neighbor of a party in a bankruptcy
proceeding and had called that party “a fine man” on the record.
We held that those facts did not provide a “reasonable basis for
questioning the judge’s impartiality.” Id. In DeTemple, the judge
in a bankruptcy fraud proceeding had previously represented one of
the defendant’s creditors. 162 F.3d at 287. We held that this
fact did not mandate recusal, in part because the judge’s
representation of the creditor ended two years before the defendant
filed for personal bankruptcy and five years prior to defendant’s
indictment. Id. In United States v. Cole, 293 F.3d 153, 164 (4th
Cir. 2002), we held that a trial judge did not abuse his discretion
in refusing to recuse himself from a case in which one of the
witnesses was the judge’s godparents’ son whom the judge had not
seen in ten years. Id. Finally, in Cherry, the judge did not
abuse his discretion by refusing to recuse himself from a bank
fraud trial in which the deceased victim had provided support for
the judge’s appointment to the federal bench ten years before the
14
trial, and the judge had responded with a letter of appreciation.
Cherry, 330 F.3d at 666.
As in the cases cited above, a reasonable person reviewing
the facts of this case would not question the judge’s impartiality.
First, the judge had no relationship with Resource Bank or Armada
Hoffler, the two corporate entities actually injured by the Agnews’
fraud. The judge’s relationship was instead more attenuated,
consisting of a prior partnership with Daniel Hoffler and A.
Russell Kirk, individuals who had ties to Armada Hoffler and
Resource Bank, respectively.
The partnership at issue consisted of sixteen individuals:
twelve partners in the judge’s prior law firm and four real estate
developers, including Mr. Hoffler and Mr. Kirk. The judge did not
have an active role in the partnership, which was created to
develop an office building to house the judge’s law firm and other
tenants. In fact, the judge held less than a three percent
interest. The partnership itself had no relation to the Agnews or
the fraud committed in this case. After the judge left private
practice, he sold his interest in the partnership, completely
divesting himself of ownership by January 1992--over ten years
before the Agnews were indicted. It appears that the judge has had
no personal or professional contact with the partnership, Resource
Bank, Armada Hoffler, Mr. Kirk, or Mr. Hoffler in more than a
decade.
15
In short, over ten years ago, the judge had a less than three
percent interest in a partnership with two individuals who were
later affiliated with corporate entities injured by the Agnews.
A reasonable person, with knowledge of these relevant facts, would
not reasonably question the judge’s impartiality in this case. On
these facts, we conclude that the judge did not abuse his
discretion in denying the Agnews’ Rule 33 motion for a new trial.5
B.
We now turn to the Agnews’ claim that the judgement was not
based on sufficient evidence. When a motion for judgment of
acquittal is based on insufficiency of the evidence, the verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. See Glasser v.
United States, 315 U.S. 60, 80 (1942). 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
5
Furthermore, while not dispositive, any allegations of
judicial bias against the Agnews are belied by the fact that the
judge was, by any objective measure, quite lenient toward the
Agnews during the trial and the sentencing proceedings. He imposed
their sentence at the low end of the sentencing range, reduced
their sentence by an estimated 75 percent, allowed them to stagger
their sentences so that one parent would remain free to take care
of their children, and acquitted them on 4 counts.
16
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). This Court
“must consider circumstantial as well as direct evidence, and allow
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). The Court does not
review the credibility of witnesses, and it must assume that the
finder of fact resolved all evidentiary contradictions in the
Government’s favor. United States v. Wilson, 115 F.3d 1185, 1190
(4th Cir. 1997). A defendant challenging the sufficiency of the
evidence faces a heavy burden. See United States v. Beidler, 110
F.3d 1064, 1067 (4th cir. 1997). “[A]n appellate court’s reversal
of a conviction on grounds of insufficient evidence should be
‘confined to cases where the prosecution’s failure is clear.’”
United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting
Burks v. United States, 437 U.S. 1, 17 (1978)).
1.
The Agnews challenge the bank fraud convictions on the basis
that Resource implicitly acquiesced in their conduct by accepting
invoices it knew did not reflect work performed. They contend they
did not deceive Resource because the submission of such invoices
was an accepted course of dealing under the CFM program.
However, this argument provides little aid to the Agnews. In
order to prove a violation of 18 U.S.C. § 1344(1), the government
17
must demonstrate that the accused executed a scheme to defraud a
federally insured or chartered bank and that the accused did so
knowingly. United States v. Brandon, 298 F.3d 307, 311 (4th Cir.
2002). The CFM documents make clear that payment is authorized
only upon the submission of a valid invoice. Generally, it is
sufficient for fraud to demonstrate a defendant’s knowledge that
the invoice does not qualify for payment. Cf. Cofacredit, S.A. v.
Windsor Plumbing Supply Co., 187 F.3d 229, 238-41 (2d Cir. 1999)
(finding that contractor’s representation of a conditional
consignment as invoice for firm sales in an effort to obtain
payment from a factor sufficient to demonstrate fraudulent
misrepresentation). That condition is met here. Further, the
Agnews have shown no authorization, either oral or written, to seek
payment on invoices for work not performed; rather, they rely on
the fact that their increasingly brazen series of
misrepresentations passed without notice.
Generally, for a course of performance to demonstrate mutual
assent to a modification, it must be “unequivocally referable” to
the modification, and for conduct to amount to a waiver or
estoppel, it “must not otherwise be compatible with the agreement
as written;” rather, “the conduct of the parties [must] evidence []
an indisputable mutual departure from the written agreement.”
Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 783 (2d Cir.
2003) (discussing New York law) (internal quotations omitted).
18
Here, however, the conduct on which the Agnews relies does not rise
to this level, as Resource did begin to question their invoices
when an audit revealed their fraud. Ultimately, the fact that the
Agnews were able to get away with submitting facially fraudulent
invoices (including some that were certified for work that,
according to the invoice, would not be completed for fifteen to
thirty days in the future) does not absolve them from engaging in
that practice in the first place. Indeed, had they not, it is
unlikely that the loss attributable to their fraud would have been
so large. Thus, the bank convictions are amply supported by the
evidence.
2.
The Agnews further challenge their convictions for embezzling
401(k) funds. They assert that there is no evidence that Mr. Agnew
had any involvement in failing to remit or improperly withholding
payments from the 401(k) plan. Further, they argue that the
evidence supporting Barbara Agnew’s conviction is legally
insufficient, as her testimony contradicts that of Lundberg, who
might be motivated to lie. The record belies both assertions.
The evidence clearly and unambiguously demonstrates that AGM
was in dire financial straits in 1997, when it owed $2 million to
vendors. The evidence is also compelling that the Agnews ran their
business jointly. Two witnesses specifically testified that the
19
Agnews jointly decided who got paid and who did not, and that both
spouses participated in that process. There is also testimony from
one of AGM’s project managers to the effect that Michael Agnew knew
that AGM was not funding the 401(k) plan, promised to take care of
it, and did not.
The evidence against Barbara Agnew is stronger. Although she
attempts to blame the failure to make payments on Lundberg’s
“disorganization,” there is ample reason to discredit Mrs. Agnew’s
testimony. A witness other than Lundberg testified as to the
conference call between Mrs. Agnew and Putnam, in which the Agnew’s
failure to fund the 401(k) plan was discussed, and during which she
promised to make full payment on the underfunded portion of the
plan and to start making regular payments again. After that, Mrs.
Agnew failed to respond to contacts regarding the repeated failure
to remit payment.
While the Agnews insist that there was no intent to defraud,
the ambit of 18 U.S.C. § 664 “includes a taking or appropriation
that is unauthorized, if accomplished with specific criminal
intent.” United States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir.
2001) (internal quotations omitted). Significantly, while “the
defendant must knowingly act wrongfully to deprive another of
property, there is no requirement that the defendant also know his
conduct was illegal.” Id. (internal quotations omitted).
Moreover, once the trier of fact has made a credibility
20
determination, that decision cannot be revisited on appeal, even
after a bench trial. United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998); United States v. Bales, 813 F.2d 1289, 1293 (4th
Cir. 1987). Reviewing the evidence, there is no merit to the the
Agnews’ challenge to the adequacy of evidence as to withholding
AGM’s mandatory contributions from its employees’ 401(k) plan.
III.
In conclusion, the district court did not err in denying the
Agnews’ motion for a new trial based upon newly discovered evidence
of judicial bias, and their motion for a judgment of acquittal.
Accordingly, the convictions are
AFFIRMED.
21