United States v. Rivenbark ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5283
DOUGLAS A. RIVENBARK,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5289
DOUGLAS A. RIVENBARK,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-94-93)
Argued: January 31, 1996
Decided: April 1, 1996
Before ERVIN and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: George A. Somerville, MAYS & VALENTINE, Rich-
mond, Virginia, for Appellant. Mary Hannah Lauck, Assistant United
States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Douglas Rivenbark appeals his convictions in two jury trials.1 In
the first trial, Rivenbark was convicted of six counts of bank fraud,
see 18 U.S.C.A. § 1344 (West Supp. 1995), one count of wire fraud,
see 18 U.S.C.A. § 1343 (West Supp. 1995), and one count of mail
fraud, see 18 U.S.C.A. § 1341 (West Supp. 1995). In the second trial,
Rivenbark was convicted of one count of possession of a firearm by
a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West Supp. 1995).
Although Rivenbark raises a host of alleged errors, all of his conten-
tions are meritless; accordingly, we affirm his convictions.
I.
Viewed in the light most favorable to the Government, see Glasser
v. United States, 315 U.S. 60, 80 (1942), the facts are as follows.
Rivenbark's convictions stem from his attempts to defraud the estate
of his wealthy neighbor, George Verlander. At the time of Ver-
lander's death on June 4, 1994, Rivenbark resided nearby in a house
_________________________________________________________________
1 Originally, all nine charges were consolidated in one trial; on the day
the trial commenced, the district court granted Rivenbark's motion to
sever the firearms charge.
2
owned by his girlfriend, Charlotte Paone. Verlander was a wealthy
man and had amassed an estate worth close to seven million dollars
when he died. Shortly after Verlander's death, Jack Neal, a close fam-
ily friend of Verlander and executor under his 1986 will, observed
Paone exiting the back door of Verlander's home, appearing "pretty
well rattled[ ] and acting strange." (J.A. at 105.) When Neal subse-
quently reviewed Verlander's financial records, he noted that the
March 1994 statement for Verlander's primary checking account at
the Chesapeake National Bank (CNB), including cancelled checks,
was missing. Included in the missing cancelled checks were two legit-
imate checks that were paid to Rivenbark, one for $4,200 and one for
$4,700. Neal also could not locate the book of blank checks that
sequentially followed the book of checks that Verlander had been
using when he died, nor could he find any blank checks for a Merrill
Lynch Cash Management Account that Verlander had closed two
years earlier. When the cash management account had been open,
Verlander had issued checks from the account only for tax and tax-
related payments.
Just after Verlander's death, six checks ostensibly issued by Ver-
lander and made payable to Rivenbark surfaced. The six checks were
dated between June 1 and June 3, 1994, just prior to Verlander's death
on June 4. Two of the checks, dated June 1, were in the amount of
$4,200 each; two of the checks, dated June 2, were in the amount of
$4,700 each; and the final two checks, dated June 3, were in the
amount of $150,000 each. Three of the checks were written on Ver-
lander's CNB account; the other three checks were written on the
closed Merrill Lynch account. The three checks written on the CNB
account were from the missing book of checks, and none of the
checks had been entered on Verlander's check register for either
account. At trial, Thomas Goyne, a forensic expert on questioned doc-
uments, testified that all six checks were forged and had been pro-
duced by simulation, tracing, or some other imitation method.
Despite the fact that all of the checks were dated before June 4,
Rivenbark deposited the four checks that were for smaller amounts
into his business account in piecemeal fashion at three different CNB
locations over the course of two days.2 He made one deposit on June
_________________________________________________________________
2 Rivenbark owned and operated a service station in the nearby town
of Kilmarnock; the business subsequently failed.
3
7 at the Irvington branch of CNB, another deposit on June 7 at the
Lively branch of CNB, and a final deposit on June 8 at the Kilmar-
nock branch of CNB. One bank employee testified that she was sur-
prised to see Rivenbark and Paone at her drive-in window in
Irvington because she had previously worked at the Kilmarnock
branch and was accustomed to seeing them there.
Rivenbark never attempted to cash either of the $150,000 checks,
one of which was drawn on the CNB account and the other on the
closed Merrill Lynch account. In the year before the checks were
written, the CNB account balance averaged approximately $25,000
and never exceeded $38,000; the Merrill Lynch account had had no
balance since 1992 and the last check had posted May 1, 1992. Spe-
cial Agent Charles Hagan of the Federal Bureau of Investigation testi-
fied that in his search of Verlander's bank records from February
1993 to May 1994, he did not identify any checks issued by Verlander
that were returned for insufficient funds.
At trial, George Mahoney, an acquaintance of Rivenbark, testified
that Rivenbark offered him $25,000 to testify falsely that he had seen
Verlander write two checks payable to Rivenbark for $150,000 each.
Another witness, a CNB employee, testified that an anonymous caller
asked whether a $150,000 check would clear on Mr. Verlander's
account. Additionally, Pamela Koerber, a Merrill Lynch employee,
testified that another Merrill Lynch division referred to her a call from
a man who reluctantly identified himself as Rivenbark. The caller
stated that he was a friend, neighbor, and business acquaintance of
Verlander and asked whether a $150,000 check would clear Ver-
lander's cash management account. After being told the account had
been closed for two years, the caller hung up. Phone records verified
that a telephone call had been placed from Paone's residence to the
Merrill Lynch office.
Shortly thereafter, Rivenbark filed a complaint with the FBI,
prompting Agent Hagan to meet with Rivenbark on July 22, 1994.
Rivenbark showed Agent Hagan the two $150,000 checks and com-
plained that a conspiracy existed between Neal and other individuals
connected with Verlander's estate to deprive Rivenbark of the pro-
ceeds from the checks. Additionally, Rivenbark alleged the same con-
spirators sought to prevent the probate of a second will of Verlander
4
dated May 29, 1994 (the May 29 will), which expressly revoked Ver-
lander's 1986 will that had named Neal as executor. The May 29 will
surfaced when it was received in the mail on June 27, 1994, by the
Clerk of Court in Lancaster County.
Verlander had drafted the 1986 will with the assistance of Neal and
Dexter Rumsey, the former chair of the Virginia State Bar Section on
Wills, Trusts, and Estates. The will provided for the creation of three
trusts at Verlander's death: a marital trust for his wife, Cornelia; a
second, smaller trust for the benefit of his step-siblings; and a charita-
ble trust to provide educational opportunities for the poor children of
Weems, Virginia.
The terms of the May 29 will sharply departed from the terms of
the 1986 will. In the May 29 will, which was never probated because
it was not properly witnessed, Verlander provided nothing to the chil-
dren of Weems, nothing to his step-siblings, and devised only his
interest in their modest home to his wife. Instead, Verlander named
Rivenbark as executor, left the bulk of the estate to Paone, and
released any loans payable by Rivenbark to Verlander, calling Riven-
bark "the son I never had." (J.A. at 454.) At trial, Goyne testified that
Verlander's signature on the will had been forged.
A third will, dated June 2, 1994 (the June 2 will), surfaced on Octo-
ber 10, 1994, and was probated in the Lancaster County clerk's office.
Rivenbark, Chester Henry, and Gary Willis had witnessed the will,
and the will stated that its terms were not to be made public until
ninety days after Verlander's death. Curiously, Rivenbark did not
mention the existence of the June 2 will in his July 22 meeting with
Agent Hagan. The monetary provisions varied only slightly from
those of the May 29 will, again leaving the bulk of the estate to
Paone. In the June 2 will, Verlander stated that the reason for the
large bequest to Paone was because Paone had been"a great compan-
ion" and Paone's son "could verry possible[sic] be my son and my
only son." (J.A. at 459.)
At trial, Henry testified that Rivenbark coerced him to witness the
June 2 will. Henry stated that he signed the will as a witness after
Verlander's death and that, at the time, the will had no signatures on
it. When Henry asked Rivenbark how he was going to get Verlander's
5
signature on the will, Rivenbark described the method he would use
to forge Verlander's signature. Goyne testified that Verlander's signa-
ture on the June 2 will was indeed a forgery. In a subsequent search
of Rivenbark and Paone's home, investigators found a book entitled
You and the Law. The chapter on estates and wills was heavily high-
lighted, and the sections describing how to disinherit a relative inten-
tionally and how to appoint an executor were explicitly marked.
Rivenbark was indicted on nine felony counts in the United States
District Court for the Eastern District of Virginia. In the first jury
trial, Rivenbark was convicted of eight fraud counts and sentenced to
eight concurrent terms of 105 months imprisonment. In the second
jury trial, he was convicted of the firearms charge and sentenced to
60 months imprisonment to be served concurrently with the other
eight terms. Although Rivenbark appeals his convictions on numerous
grounds, we limit our written discussion to Rivenbark's three main
arguments: (1) whether Rivenbark suffered ineffective assistance of
counsel at trial, in violation of the Sixth Amendment; (2) whether the
Government offered sufficient evidence at trial to sustain his convic-
tions for bank fraud and mail fraud; and (3) whether the district court
erred in denying Rivenbark's motion for a continuance of the firearms
trial.3 We address these contentions seriatim.
II.
Rivenbark's primary contention on appeal is that he suffered inef-
fective assistance of counsel. According to Rivenbark, the district
court erred by failing to heed the "danger signals" of Rivenbark's
alleged ineffective assistance of counsel and in failing to inquire into
the adequacy of Rivenbark's counsel. In advancing this claim, Riven-
bark cites eleven specific instances of alleged ineffective assistance
of counsel, which can be classified into four categories: (1) alleged
failure to comply with procedural rules, namely failing to file a wit-
_________________________________________________________________
3 Law enforcement officers located the evidence supporting the fire-
arms conviction when they searched Rivenbark and Paone's home in
conjunction with their fraud investigation. In the search, Agent Hagan
discovered two fully-loaded assault rifles, two fully-loaded semi-
automatic pistols, and a letter from the Virginia Department of Correc-
tions advising Rivenbark that he could not possess a firearm.
6
ness list with the district court; (2) unsuccessful trial strategy; (3)
alleged failure to relay information; and (4) inadequate cross-
examination of Government witnesses.
We have consistently observed that a claim of ineffective assis-
tance of counsel is more properly raised on collateral review than on
direct review. See, e.g., United States v. Smith, 62 F.3d 641, 651 (4th
Cir. 1995); United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.
1994); United States v. Percy, 765 F.2d 1199, 1205 (4th Cir. 1985).
Thus, Rivenbark's challenge to his counsel's assistance is properly
brought by a motion to set aside his sentence under 28 U.S.C.A.
§ 2255 (West 1994). A narrow exception to this precept is that a
reviewing court will address a claim of ineffective assistance of coun-
sel on direct appeal if the record conclusively discloses that defense
counsel failed to provide effective representation. 4 See United States
v. Gastiaburo, 16 F.3d 582, 590 (4th Cir.) (recognizing the exception,
but failing to apply it because the record did not"conclusively dem-
onstrate" that counsel was ineffective), cert. denied, 115 S. Ct. 102(1994); Matzkin, 14 F.3d at 1017 (declining to address a claim of inef-
fective assistance of counsel because counsel's alleged ineffective-
ness was not conclusively apparent from the record). Unless,
therefore, the record conclusively demonstrates that Rivenbark's
counsel was ineffective, we shall not review this claim on direct
appeal. The reason for our reticence to address such a claim on direct
review is clear: "The issue was not preserved on the record below,
and it would be unfair to adjudicate the issue without any statement
from counsel on the record," United States v. DeFusco, 949 F.2d 114,
120 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992), and without
an adequate record to resolve the issue, "it is impossible to make a
_________________________________________________________________
4 Another exception to the general rule exists: Under Federal Rule of
Criminal Procedure 33, the district court on the defendant's motion may
grant a new trial predicated on ineffective assistance of counsel if
required in the interest of justice. See United States v. Smith, 62 F.3d
641, 648 (4th Cir. 1995). The defendant's motion, however, "must be
brought, if at all, within seven days of judgment regardless of when the
defendant becomes aware of the facts which suggested to h[im] that h[is]
attorney's performance may have been constitutionally inadequate." Id.Because Rivenbark did not comply with the jurisdictional requirements
of Rule 33, we need address this exception no further.
7
reasoned judgment as to whether or not representation was ineffec-
tual," United States v. Lurz, 666 F.2d 69, 78 (4th Cir. 1981), cert.
denied, 455 U.S. 1005 (1982).
Application of these precepts compels us to conclude that we can-
not review Rivenbark's claim of ineffective assistance of counsel on
direct appeal because the record does not conclusively demonstrate
that his counsel was constitutionally ineffective. For example, Riven-
bark claims that he was unable to present a defense in the first trial
because his counsel failed to submit a witness list on time. The record
does not conclusively support this allegation; we could just as easily
infer from the record that although the district judge was unhappy
with the tardiness of Rivenbark's counsel in submitting the witness
list, he would have permitted Rivenbark to call the witnesses had
Rivenbark chosen to do so. Rather, Rivenbark's counsel appears to
have made the tactical decision not to call the witnesses at trial. As
another example, Rivenbark complains that he is unable to conceive
of any reason why his trial counsel introduced into evidence Henry's
written statement to Special Agent Hagan alleging that Rivenbark
attempted to bribe Henry to witness the June 2 will and then threat-
ened to harm him if he did not witness the will. We believe, however,
that the record is clear that Rivenbark's counsel entered the statement
into evidence to impeach Henry: In his trial testimony, Henry claims
that Rivenbark demonstrated how he could forge Verlander's signa-
ture; in the contemporaneous written statement, Henry makes no men-
tion of this crucial part of the conversation. Given the nature of his
allegations, Rivenbark has failed to prove that the record conclusively
discloses that his trial counsel was constitutionally ineffective. Thus,
we do not address the issue on direct appeal. See Gastiaburo, 16 F.3d
at 590.
III.
Next, Rivenbark challenges the sufficiency of the evidence to sus-
tain his convictions for bank fraud and mail fraud. Our review of the
evidence, however, leads to the conclusion that the evidence is suffi-
cient to sustain the convictions.
In United States v. Glasser, 315 U.S. 60 (1942), the Supreme Court
explained that a jury verdict "must be sustained if there is substantial
8
evidence, taking the view most favorable to the Government, to sup-
port it." Id. at 80 (emphasis added). A reviewing court, therefore, may
not overturn a substantially supported verdict merely because it finds
the verdict unpalatable or determines that another reasonable verdict
would be preferable. Rather, we shall reverse a verdict only if the
record demonstrates a lack of evidence from which a jury could find
guilt beyond a reasonable doubt. See Burks v. United States, 437 U.S.
1, 17 (1978). In the context of a criminal action, substantial evidence
is evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant's guilt beyond
a reasonable doubt. See United States v. Smith , 29 F.3d 914, 917 (4th
Cir.), cert. denied, 115 S. Ct. 454 (1994). In applying this standard of
review, we must remain cognizant of the fact that"[t]he jury, not the
reviewing court, weighs the credibility of the evidence and resolves
any conflicts in the evidence presented, and if the evidence supports
different, reasonable interpretations, the jury decides which interpre-
tation to believe." United States v. Murphy , 35 F.3d 143, 148 (4th Cir.
1994) (citations omitted), cert. denied, 115 S. Ct. 954 (1995). Thus,
the appellate function is not to determine whether the reviewing court
is convinced of guilt beyond reasonable doubt, but, viewing the evi-
dence and the reasonable inferences to be drawn therefrom in the light
most favorable to the Government, whether the jury could have found
the elements of the crime beyond a reasonable doubt.
Critical to our review of sufficiency challenges is the complete pic-
ture that the evidence presents. See United States v. Al-Talib, 55 F.3d
923, 931 (1995). We do not examine evidence in a piecemeal fashion,
but consider it in cumulative context. See, e.g. , Kyles v. Whitley, 115
S. Ct. 1555 (1995); Glasser, 315 U.S. at 80-81. The focus of appellate
review, therefore, of the sufficiency of evidence to support a convic-
tion is on the complete picture, viewed in context and in the light
most favorable to the Government, that all of the evidence portrayed.
Guided by these principles, we review the evidence on which Riven-
bark's convictions were rendered.
A.
Rivenbark was convicted of bank fraud, in violation of 18 U.S.C.A.
§ 1344. In order to prove bank fraud, the Government had to establish
beyond a reasonable doubt that: (1) Rivenbark made a false statement
9
to a federally insured bank; (2) the false statement was made for the
purpose of influencing the bank's action; (3) the false statement was
knowingly made; and (4) the statement was false regarding a material
fact. See United States v. Whaley, 786 F.2d 1229, 1231 (4th Cir.
1986). Rivenbark contends that he did not know the four checks were
forged when he deposited them, thereby disputing that the Govern-
ment established the third element of the crime, but conceding that the
Government established the remaining elements of the crime beyond
a reasonable doubt.
After carefully reviewing the record, we conclude that a reasonable
jury could have found that Rivenbark knew the checks were forged
when he deposited them. Government witness Chester Henry testified
that Rivenbark informed him that he could forge Verlander's signa-
ture. In addition, three bank tellers testified that Rivenbark personally
deposited four checks into his account in three different transactions
at three different branches over a two-day period, even though he pos-
sessed all six forged checks at the time of the first deposit. Also, Gov-
ernment witness George Mahoney testified that Rivenbark attempted
to bribe him with $25,000 in exchange for Mahoney testifying falsely
that Mahoney witnessed Verlander sign the two $150,000 forged
checks payable to Rivenbark. Based on this testimony, the jury was
certainly entitled to conclude that Rivenbark knew the checks were
forged.
B.
Rivenbark also asserts that the evidence was insufficient to sustain
his conviction for mail fraud, in violation of 18 U.S.C.A § 1341. In
order to establish mail fraud, the Government had to prove beyond a
reasonable doubt that: (1) Rivenbark engaged in a scheme to defraud;
(2) by using the mails; (3) in furtherance of the scheme. See United
States v. Locklear, 829 F.2d 1314, 1318 (4th Cir. 1987). While
implicitly conceding that the evidence establishes that someone
mailed a forged will to the clerk's office, Rivenbark posits that the
Government failed to demonstrate that he was the one who used the
mails. According to Rivenbark, the jury could have just as reasonably
concluded that Paone mailed the forged instrument.
10
Again, we cannot accept Rivenbark's position because a rational
jury could conclude that Rivenbark could foresee the use of the mails.
In Locklear, we explained that
"[w]here one does an act with knowledge that the use of the
mails will follow . . . , or where such use can reasonably be
foreseen, even though not actually intended, then he causes
the mails to be used." The government need not show that
[the defendant] mailed anything himself, nor that he
intended the mails to be used to carry out the fraud.
Id. (citations omitted) (quoting Pereira v. United States, 347 U.S. 1,
8-9 (1954)). Ample evidence indicated that Rivenbark devised the
scheme to defraud Verlander's estate. For instance, Henry testified
that Rivenbark told him he knew how to trace Verlander's signature
with a pen and that Rivenbark coerced him to witness the June 2 will.
Also, Rivenbark pursued validation of the forged May 29 will while
meeting with Agent Hagan, despite the fact that Rivenbark had wit-
nessed the superseding, and also forged, June 2 will. Thus, Riven-
bark's assertion that Paone actually mailed the forged May 29 will is
of no moment. See United States v. Odom, 736 F.2d 104, 109 (4th
Cir. 1984) ("It is plainly not necessary . . . that the one charged be the
one who physically did the mailing . . . ."). We therefore conclude
that there was sufficient evidence to sustain the mail fraud conviction.
See Locklear, 829 F.2d at 1318.
IV.
The final challenge that we discuss is Rivenbark's contention that
the district court erred by denying his motion for a continuance of the
firearms trial. According to Rivenbark, he was precluded from mount-
ing a defense to the firearm possession charge because his counsel
failed to return his telephone calls. Rivenbark asserts that this failure
resulted in his counsel's inability to subpoena thirteen material wit-
nesses who allegedly would have proffered testimony that Rivenbark
did not possess the firearms.
For Rivenbark "[t]o prove that the denial of the continuance consti-
tutes reversible error, [he] must demonstrate that the court abused its
``broad' discretion and that he was prejudiced thereby." United States
11
v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991) (quoting United States
v. LaRouche, 896 F.2d 815, 823 (4th Cir.), cert. denied, 496 U.S. 927(1990)). An abuse of discretion has occurred only if the record
reflects an "unreasoning and arbitrary ``insistence upon expeditious-
ness in the face of a justifiable request for delay.'" Morris v. Slappy,
461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575,
589 (1964)). Under the facts of this case, we cannot conclude that the
district court abused its discretion when it denied Rivenbark's motion.
The district court denied the motion to continue because it deter-
mined that Rivenbark's counsel had not failed to subpoena any mate-
rial witnesses. Of the thirteen witnesses Rivenbark sought to
subpoena, eleven appeared on the witness list that Rivenbark submit-
ted to the court before the first trial and before the firearms charge
was severed. Rivenbark's counsel had investigated these witnesses
before trial and found them to be of no assistance to Rivenbark's
defense. As for Paone, another witness on the list of thirteen, Riven-
bark's counsel stated at trial that he did not plan to call her as a wit-
ness for the defense. The final witness on the list, George Mahoney,
was available at trial because he testified for the prosecution. Because
the record does not reflect that any of the unavailable witnesses on
Rivenbark's list would have been helpful to his defense, we hold that
the district court did not abuse its discretion in denying Rivenbark's
request for a continuance.
V.
We conclude that the record does not conclusively demonstrate that
Rivenbark's counsel was constitutionally ineffective; hence, we do
not review that claim on direct appeal. Reviewing the sufficiency of
the evidence, we conclude that it was sufficient to sustain Rivenbark's
convictions beyond a reasonable doubt. Finally, we hold that the dis-
trict court did not abuse its discretion in denying Rivenbark's motion
for a continuance. We have carefully examined Rivenbark's
12
remaining assignments of error and conclude that they are without
merit.5 The judgment of the district court is affirmed.
AFFIRMED
_________________________________________________________________
5 Rivenbark also raised the following claims in his appellate brief: (1)
The district court impermissibly admitted the testimony of Pamela Koer-
ber because it was hearsay; (2) the admission of evidence that Rivenbark
possessed firearms between March and July of 1994 either impermissibly
constructively amended the indictment, or, alternatively, constituted a
variance between the indictment and the evidence adduced at trial; (3)
the district court failed to conduct an adequate hearing before allowing
Rivenbark to appear pro se in the second trial; and (4) the district court
committed plain error when it sua sponte limited the cross-examination
of Henry. These challenges are clearly meritless under the facts and law.
13