United States v. Esposito ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALBERT ESPOSITO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-202)
Submitted: October 5, 2006 Decided: November 16, 2006
Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and James R.
SPENCER, Chief United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MALONEY AND MEIER, L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Albert Esposito appeals his convictions and sentence for
various offenses arising out of a “Ponzi” scheme. Finding no
error, we affirm.
I.
From 1998 through 2001, Esposito and several others created
various entities and defrauded numerous investors of millions of
dollars. Esposito convinced his victims, through seminars and
conversations, to invest their money with him in investment
vehicles such as gold bullion, aviation, real estate, and
Christian-oriented causes. In reality, however, Esposito used his
investors’ money for the personal benefit of himself and others and
to pay other investors to trick them into believing that their
investments were making money.
Esposito was indicted along with three co-defendants and
charged with one count of conspiracy to commit offenses against the
United States, including mail and wire fraud, see 18 U.S.C.A. § 371(West 2000); two mail fraud counts, see 18 U.S.C.A. § 1341 (West
Supp. 2006); four wire fraud counts, see 18 U.S.C.A. § 1343 (West
Supp. 2006); 20 counts of money laundering, see 18 U.S.C.A.
§§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), 1957(a) (West 2000); and one
count of conspiracy to engage in money laundering and in monetary
transactions in property derived from unlawful activity, see
18 U.S.C.A. § 1956(h) (West Supp. 2006).
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Upon the completion of the Government’s case at trial,
Esposito moved unsuccessfully for a judgment of acquittal. At the
conclusion of the trial, the Government moved to dismiss two of the
wire fraud counts and four of the money laundering counts. The
jury found Esposito not guilty of two of the money laundering
counts but guilty of the 20 remaining counts.
II.
Esposito first argues that the district court erred in
allowing the Government to ask witness David Brooks whether he was
aware that Esposito had previously been convicted of laundering
drug money.1 We disagree.
Evidentiary rulings are generally reviewed for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). Although evidence of a person’s character is normally
not admissible for the purpose of proving action in conformity
therewith on a particular occasion, it “may be offered by the
government to rebut character evidence introduced by the accused.”
United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994).
Here, Esposito “opened the door” to the Government’s rebuttal
when he questioned Brooks regarding Brooks’ belief, based on his
having known Esposito since 1986, that Esposito would not set out
to steal his money. See id. (holding that defendant’s elicitation
1
Brooks testified that he was not aware of this conviction.
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of testimony that he was honest and trustworthy in his business
dealings opened the door for the Government to question witness
about prior conduct by the defendant that would conflict with that
assessment). Thus, the district court did not abuse its discretion
in allowing the question.
III.
Esposito also contends that the district court erred in
denying his motion for a judgment of acquittal. This argument is
meritless.
We review the denial of a motion for a judgment of acquittal
de novo. See United States v. Gallimore, 247 F.3d 134, 136 (4th
Cir. 2001). “In evaluating the sufficiency of the evidence to
support a criminal conviction, we must determine--viewing the
evidence and all of the inferences reasonably to be drawn from it
in the light most favorable to the Government--whether a reasonable
trier of fact could have found the defendant guilty beyond a
reasonable doubt.” United States v. Rahman, 83 F.3d 89, 93 (4th
Cir. 1996).
Esposito maintains that his motion should have been granted
because the Government failed to present sufficient evidence of his
intent to defraud his victims. To the contrary, the evidence of
Esposito’s fraudulent intent was overwhelming and included
testimony regarding multiple admissions by Esposito that he was
running a Ponzi scheme rather than offering legitimate investment
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opportunities. Thus, the district court correctly denied his
motion.
IV.
Esposito, who represented himself at trial, next argues that
the district court abused its discretion in denying his motion to
dismiss the charges against him based on the Government’s having
had access to his work product following its replacement of a
laptop computer the Government had provided to him to help him
prepare for trial. See United States v. Smith, 55 F.3d 157, 158
(4th Cir. 1995) (stating standard of review). Esposito notes that
the Government downloaded all of his files (and provided them on
compact disc to standby counsel) when the computer quit working.
This, he maintains, violated his confidentiality rights and denied
him a fair trial. We disagree.
Counsel for the Government reported that in replacing the
computer and transferring the files, the Government employed a
strict procedure to assure that no one from the United States
Attorney’s Office--except for its technical assistant--had access
to the information stored on the computer. In view of this
procedure and in the absence of any evidence that any person
participating in Esposito’s case gained information stored by him
on the computer, the district court did not abuse its discretion in
denying Esposito’s motion to dismiss the indictment.
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V.
Esposito next argues that the district court erred in denying
his motion for a continuance after he was provided with more than
300 audio tapes only a few days before trial. We disagree.2
A denial of a continuance motion constitutes an abuse of
discretion only if the denial was “an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(internal quotation marks omitted). A defendant challenging a
denial of such a motion must establish not only that the denial
constituted an abuse of discretion but also that he was prejudiced
by the ruling. See United States v. Bakker, 925 F.2d 728, 735 (4th
Cir. 1991).
Here, the record reflects that Esposito had access to the
tapes in question throughout the case. And, in any event, Esposito
does not explain what he would have done differently at trial had
the continuance been granted. Thus, he has not established any
reversible error.
2
Esposito also appears to contend that the district court
erred in denying his request for an investigator and a forensic
accountant. If he does assert this claim, his conclusory argument
amounts to a waiver of the claim, and we do not address it. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”).
Esposito further complains of several conditions of his pre-trial
confinement but does not identify any ruling of the district court
concerning those conditions with which he takes issue. We
therefore have nothing to review in that regard.
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VI.
Finally, Esposito contends that the district court employed an
incorrect procedure in calculating his sentence after United States
v. Booker, 543 U.S. 220 (2005). He claims that the district court
failed to recognize that following Booker it was “required to
determine whether the guidelines applied and whether the conduct in
this case was atypical, and, if so, whether some other guidelines
should apply.” Br. of Appellant at 16. We find no error.
The treatment to be given the guidelines post-Booker is
described in detail in United States v. Moreland, 437 F.3d 424, 432
(4th Cir. 2006). The district court correctly employed the
procedure that Moreland prescribes.
VII.
In sum, we affirm Esposito’s convictions and sentence.
AFFIRMED
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