United States v. Kennelly , 84 F. App'x 278 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4287
DONALD KENNELLY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4296
KENNETH R. HYATT,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-02-13)
Submitted: November 19, 2003
Decided: December 22, 2003
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jeanette Doran Brooks, Raleigh,
2 UNITED STATES v. KENNELLY
North Carolina; Sue Genrich Berry, Wilmington, North Carolina, for
Appellants. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Donald Kennelly and Kenneth R. Hyatt were both convicted by a
jury of one count of conspiracy to defraud and to commit mail fraud
against the United States, in violation of 18 U.S.C. § 371 (2000), and
two counts of mail fraud and aiding and abetting mail fraud, in viola-
tion of 18 U.S.C. §§ 2, 1341 (2000).
In these consolidated appeals, Kennelly and Hyatt challenge the
sufficiency of the evidence to support their convictions. First, they
assert that the evidence was insufficient to sustain their convictions
on the conspiracy count because the Government failed to prove the
existence of a conspiratorial agreement between them or between
either of them and any other person. Second, they assert that because
a conviction on the conspiracy count was a necessary predicate to a
conviction on the mail fraud and aiding and abetting counts, their con-
victions on these counts must also be reversed. They also claim that
the insufficiency of the evidence was compounded by the district
court’s instruction on deliberate ignorance, even though the district
court granted their requested version of the instruction. Because we
conclude these assertions are meritless, we affirm.
In reviewing a sufficiency challenge, "[t]he verdict of a jury must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United States,
UNITED STATES v. KENNELLY 3
315 U.S. 60, 80 (1942). This court "ha[s] defined ‘substantial evi-
dence,’ in the context of a criminal action, 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) (en
banc)). In evaluating the sufficiency of the evidence, this court does
not weigh the evidence or review the credibility of witnesses, and
where the evidence supports differing reasonable interpretations, the
jury decides which interpretation to believe. United States v. Wilson,
118 F.3d 228, 234 (4th Cir. 1997) (quotations omitted).
"The elements of the crime of conspiracy to defraud the United
States in violation of 18 U.S.C. § 371 are: (1) the existence of an
agreement, (2) an overt act by one of the conspirators in furtherance
of the agreement, and (3) intent to agree to defraud the United States."
United States v. Winfield, 997 F.2d 1076, 1082 (4th Cir. 1993). The
elements of a conspiracy to commit mail fraud are (1) the existence
of an agreement to commit mail fraud, (2) willing participation by the
defendant, and (3) an overt act by one of the defendants in furtherance
of the agreement. United States v. Edwards, 188 F.3d 230, 234 (4th
Cir. 1999).
To convict a defendant of fraud, the government must prove that
he acted knowingly and willfully with the specific intent to deceive.
United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). "The
willful blindness instruction allows the jury to impute the element of
knowledge to the defendant if the evidence indicates that he purposely
closed his eyes to avoid knowing what was taking place around him."
Id. "Moreover, where the evidence presented in the case supports both
actual knowledge on the part of the defendant and deliberate igno-
rance, a willful blindness instruction is proper." United States v.
Abbas, 74 F.3d 506, 513 (4th Cir. 1996). "This circuit approves a
willful blindness instruction when the jury is not permitted to infer
guilty knowledge from a mere showing of careless disregard or mis-
take." United States v. Guay, 108 F.3d 545, 551 (4th Cir. 1997) (cit-
ing United States v. Mancuso, 42 F.3d 836, 846 (4th Cir. 1994)).
"By its very nature, a conspiracy is clandestine and covert, thereby
frequently resulting in little direct evidence of such an agreement."
4 UNITED STATES v. KENNELLY
Burgos, 94 F.3d at 857. "Indeed, a conspiracy may be proved wholly
by circumstantial evidence." Id. at 858. Our review of the evidence
convinces us that the evidence was sufficient to establish an agree-
ment by Kennelly and Hyatt to defraud and to commit mail fraud
against the United States. Moreover, we find that under the facts of
this case, the district court’s deliberate ignorance instruction was war-
ranted. Because we find the evidence was sufficient to sustain Ken-
nelly’s and Hyatt’s convictions on the conspiracy count, we need not
decide whether a reversal of their convictions on this count would
require a reversal of their convictions on the mail fraud and aiding
and abetting counts.
Accordingly, we affirm Kennelly’s and Hyatt’s convictions and
sentences. 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 in the decisional process.
AFFIRMED