United States v. Wright ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4197
DOUGLAS T. WRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Charles E. Simons, Jr., Senior District Judge.
(CR-93-356)
Submitted: March 10, 1998
Decided: May 12, 1998
Before NIEMEYER and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Landon D. Long, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Dean
A. Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Douglas T. Wright appeals his conviction and sentence
for wire fraud in violation of 18 U.S.C. § 1343 (1994), and conspiracy
in violation of 18 U.S.C. § 371 (1994). Finding no error, we affirm
Appellant's conviction and sentence.
I.
The Government's evidence at trial showed that Wright and co-
defendant Yuji Hitomi ("Defendants"), along with co-conspirator
Motokichi Muto, attempted to obtain millions of dollars in financing
using a fraudulent Japanese reconstruction bond ("Certificate").
Defendants represented that the Certificate had been issued by the
ministry of finance of Japan as part of its reconstruction efforts after
World War II. The Certificate, if real, would have had a value of
approximately $500 million when it matured in 1998.
The FBI began investigating Defendants in July 1993. Wright and
an FBI informant conducted a series of transactions between July and
September 1993, which eventually culminated in Wright, Hitomi, and
Muto flying to South Carolina to consummate the sale of the Certifi-
cate. Undercover FBI agents posing as investors met with Wright,
Hitomi, and Muto in a hotel room. The agents brought with them con-
tract documentation, including a purchase and sale agreement. Both
Defendants signed the agreement. No attorneys were present at the
meeting, nor did the Defendants at any time request that they be
allowed to have attorneys look over the documents.
During the negotiating session, the agents told Defendants that they
had checked with a bank that morning and been advised that the Cer-
tificate was fraudulent, and that no bank should accept it as collateral.
One of the agents then said that he would try to obtain financing from
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a small bank that might not be aware of the problem with the certifi-
cate, and Defendants acquiesced. Wright agreed to accept $25 million
for the Certificate, just five percent of the certificate's face value of
$500 million. After finalizing the agreement, Defendants were
arrested.
Over the objection of Defendants, the district court gave a willful
blindness charge to the jury. That charge stated in pertinent part:
If you find beyond a reasonable doubt that these defendants
were aware of a high probability that the Japanese bond was
fraudulent, and that they deliberately avoided learning the
truth, the element of knowledge may be inferred if defen-
dants Hitomi and Wright deliberately closed their eyes to
what would otherwise have been obvious to them or any
reasonable person under the circumstances then and there
existing. You may not find that the defendants Hitomi and
Wright acted knowingly, however, if you find that the
defendants, Hitomi and Wright, actually believed in good
faith that the bond in question was not fraudulent. A show-
ing of negligence, mistake or carelessness is not sufficient
to support a finding of knowledge.
At sentencing, Defendants argued that their total offense level
should be reduced by three levels under U.S. Sentencing Guidelines
Manual § 2X1.1 (1995), on the ground that the offense was only par-
tially completed. The district court rejected this argument, finding that
Defendants had done all of the acts they believed necessary for the
successful completion of the offense, and thus that a three level reduc-
tion under § 2X1.1 was not warranted. Wright timely appealed.
On appeal, Wright contends that the evidence did not support a
willful blindness jury instruction. Wright also maintains that the dis-
trict court should have reduced his offense level under § 2X1.1.
II.
This court reviews the decision of whether or not to give a particu-
lar jury instruction for abuse of discretion. See United States v.
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Whittington, 26 F.3d 456, 462 (4th Cir. 1994). In this case, there was
sufficient evidence from which the jury could infer that Wright delib-
erately avoided learning that the Certificate was fraudulent; thus, the
district court did not abuse its discretion by giving a willful blindness
jury instruction.
One of Wright's attempts to obtain a loan against the $500 million
Certificate took place in a dilapidated office building in a run-down
area of New York City. Additionally, Wright claimed to have relied
on Muto's integrity in believing the Certificate was valid, but in a pre-
vious transaction, Muto had given Wright an invalid $150,000 prom-
issory note. Wright also signed the purchase and sale agreement
prepared by the undercover agents, which stated that he had made
every effort, including verification with the Japanese government, to
ensure the Certificate was authentic. However, Wright did not attempt
to verify the Certificate's authenticity. Wright was also advised by a
congressman friend that the Certificate was worthless. Perhaps most
significantly, a potential investor researched the Certificate with Japa-
nese banks and advised Wright that the Certificate had never been
issued by the Japanese Ministry of Finance, and was non-negotiable.
Thus, there was sufficient evidence presented from which a jury could
infer that if Wright did not know the certificate was fraudulent, he
deliberately shut his eyes to that fact. See United States v. Abbas, 74
F.3d 506, 513 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3794 (U.S. May 28, 1996) (No. 95-8821); Whittington, 26 F.3d at
462-63. The form of the instruction was likewise proper. See United
States v. Guay, 108 F.3d 545, 551 (4th Cir. 1997).
III.
At sentencing, Wright requested that his offense level be reduced
by three levels under USSG 2X1.1, incorporated into USSG § 2F1.1
by comment. (n. 9). That section provides for a three level reduction
when an offense involves an attempt, unless "the defendant has com-
pleted all the acts the defendant believed necessary for successful
completion of the substantive offense."
The district court determined that Defendants had completed all the
acts they believed necessary for the successful completion of the
underlying fraud, and thus that the three level reduction under
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§ 2X1.1 was not warranted. The district court's determination that
Defendants had done all of the acts they believed necessary for the
completion of the fraud is a factual one, which this court reviews for
clear error. See United States v. Barton, 32 F.3d 61, 64 (4th Cir.
1994); United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Defendants and Muto came to South Carolina following negotia-
tions between Wright and Stycos, bringing with them the original
Certificate. After negotiating with the undercover agents, Defendants
agreed to accept $25 million for the Certificate, signed the purchase
and sale agreement, and were prepared to deliver the Certificate to the
undercover agents. The district court did not clearly err in finding that
Defendants had done all they believed necessary to complete the
underlying fraud, and in refusing to apply the reduction under
§ 2X1.1. See Barton, 32 F.3d at 64; see also United States v.
Studevent, 116 F.3d 1559, 1564 (D.C. Cir. 1997); United States v.
Knox, 112 F.3d 802, 813 (5th Cir.), cert. denied, ___ U.S. ___, 66
U.S.L.W. 3399 (U.S. Dec. 8, 1997) (No. 97-6690).
Accordingly, we affirm Wright's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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