United States v. Hofler ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS W. HOFLER, JR.,
Defendant - Appellant.
No. 05-4749
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS W. HOFLER, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-03-211)
Submitted: March 31, 2006 Decided: May 12, 2006
Before NIEMEYER, LUTTIG,* and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven D. Goodwin, GOODWIN, SUTTON & DUVAL, PLC, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
John S. Davis, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
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PER CURIAM:
Thomas W. Hofler, Jr., was convicted after a trial of one
count of conspiracy to commit money laundering, in violation of 18
U.S.C. § 1956 (2000), three counts of wire fraud and aiding and
abetting such fraud, in violation of 18 U.S.C.A. §§ 2, 1343 (West
2000 & Supp. 2005), and five counts of money laundering and aiding
and abetting money laundering, in violation of 18 U.S.C. §§ 2,
1956(a)(1)(A)(I) (2000). Hofler was involved in a “Ponzi” scheme
in which he and others induced persons to invest money in
investment plans offering high yields and little risk. Often the
money was never invested, but was used to make payouts to prior
investors. In addition, the money was used to support their other
businesses or for personal expenses. On appeal, Hofler raises the
following four issues: (1) the district court erred in not
granting his motion for a Franks hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978); (2) the district court erred in not
granting a new trial due to juror misconduct; (3) the district
court erred in not granting a new trial based on newly discovered
evidence; and (4) the evidence was not sufficient to support the
convictions.
We agree with the district court that a Franks hearing
was not necessary. Hofler failed to show that the allegedly false
statements made in the affidavit supporting the search warrant were
necessary for a finding of probable cause. United States v.
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Jeffus, 22 F.3d 554, 558 (4th Cir. 1994).
We further find there was no clear error with respect to
the district court’s findings regarding juror bias. Hofler failed
to establish actual or implied bias. See Jones v. Cooper, 311 F.3d
306, 310 (4th Cir. 2002); Fitzgerald v. Greene, 150 F.3d 357, 365
(4th Cir. 1998).
We also find the district court did not err in denying
the motion for a new trial based upon newly discovered evidence.
Because the witness at the center of the motion admitted to
fraudulent conduct and deceiving his business associates and
investors, the newly discovered impeachment evidence offered by
Hofler was not material. United States v. Bagley, 473 U.S. 667,
678, 682 (1985).
Finally, after viewing the evidence in the light most
favorable to the Government, we find there was sufficient evidence
to support the convictions. Glasser v. United States, 315 U.S. 60,
80 (1942).
Accordingly, we affirm the convictions and sentence. 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 the decisional process.
AFFIRMED
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