United States v. Bryon Jones ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4121
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BYRON JONES, a/k/a Brian Simms,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:20-cr-00254-RJC-DSC-1)
Submitted: April 19, 2023 Decided: May 31, 2023
Before AGEE and WYNN, Circuit Judges, and Henry E. HUDSON, Senior United States
District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: John G. Baker, Federal Public Defender, Megan C. Hoffman, Federal Public
Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Graham
R. Billings, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Byron Jones was on supervised release when he paid a purported financial advisor
to file an application for a COVID-19 relief loan on behalf of his newly established
business. The application contained multiple false statements, including inaccurate
representations of the business’ revenues and Jones’ criminal history. After the application
was approved, Jones received $143,000 in relief funds from the Government.
When the application’s falsities were discovered, the Government filed a petition to
revoke Jones’ supervised release, asserting that Jones committed three violations of law in
connection with the application. In his defense, Jones asserted that the financial advisor
filed his application and included the false statements without his knowledge. The district
court rejected Jones’ argument and found that the Government proved that Jones
committed the alleged violations by the required preponderance of the evidence. The court
then sentenced Jones to twenty-four months’ imprisonment and five years’ supervised
release but failed to orally pronounce his discretionary conditions of release. Jones appeals.
For the reasons discussed below, we affirm the district court’s revocation of Jones’
conditional release but vacate Jones’ sentence and remand for resentencing.
I.
A.
In November 2006, Jones was convicted of multiple offenses and sentenced to 240
months’ imprisonment and ten years’ supervised release. Jones served his custodial
sentence and began his term of supervised release in November 2019. As a condition of
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release, Jones was prohibited from committing another crime. This appeal stems from
Jones’ violation of that condition.
In April 2020, Jones incorporated a trucking business, Ramses Air Freight &
Transport, Inc. (RAFT), in Delaware. 1 Shortly thereafter, as a routine part of Jones’
supervision, Jones submitted financial disclosure statements to his probation officer, Asa
Gravely. Jones reported that he was employed as a delivery driver and made approximately
$1,400 in gross monthly wages. He also noted that he was self-employed and owned a
business, RAFT. Jones did not disclose any wages associated with RAFT, but did inform
Gravely that RAFT obtained a COVID-19 relief loan.
As a result, Gravely directed Jones to complete a business financial disclosure
statement and provide supporting bank statements. Jones completed the form, noting that
RAFT’s bank account had a balance of $81,013.15 and that the business’ only asset was a
semi-truck. Jones had opened the bank account a few months earlier and funded it with a
$25 deposit from his personal account. Jones did not disclose any accounts receivable or
business income. Instead, Jones informed Gravely that the money in RAFT’s bank account
was from the COVID-19 relief loan. This information concerned Gravely, so he
investigated further.
The investigation showed that the Small Business Administration (SBA) received
an electronic application in June 2020 for an Economic Injury Disaster Loan (EIDL)
1
In 1999, Jones incorporated a trucking business in Arizona with the same name.
While Jones was in prison, that corporation ceased to exist.
3
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pursuant to the Coronavirus Aid, Relief, and Economic Security Act. 2 The application
consisted of two separate forms, a Rapid Intake Form and a Loan Authorization and
Agreement (“Loan Authorization”). The following false information about RAFT was
included in the Rapid Intake Form: (1) RAFT was incorporated in 1999; (2) it had $286,000
in gross revenues in the twelve months preceding January 31, 2020; and (3) it had
non-profit/agriculture costs of operation of $138,389 in the twelve months preceding
January 31, 2020. The Rapid Intake Form also falsely stated that the business owner had
not been placed on parole or probation in the past five years. Lastly, the Rapid Intake Form
indicated that it was not prepared by a third party and that no payments were made to a
third party for application preparation services.
Based on the Rapid Intake Form, RAFT qualified for a $133,000 loan and a $10,000
cash advance. On June 30, 2020, the SBA deposited $10,000 into RAFT’s bank account.
Ten days later, Jones signed the Loan Authorization, which did not require Jones to include
any substantive information. Instead, Jones was only required to certify that no fees had
been paid to a third-party preparer other than those disclosed on the application and that all
representations in the Rapid Intake Form were accurate. Jones signed the agreement under
penalty of perjury. Three days later, the SBA deposited the full loan amount in RAFT’s
bank account.
2
The COVID-19 EIDL program allowed then-existing small businesses
experiencing economic injury caused by the pandemic to obtain loans to pay expenditures
necessary to alleviate that injury. Coronavirus Aid, Relief, and Economic Security Act,
Pub. L. No. 116-136, §§ 1107, 1110, 134 Stat. 281 (2020).
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Upon questioning, Jones informed Gravely that Shay Chambers, someone
purporting to be a financial advisor and certified public accountant (CPA) in Ohio,
prepared the application. 3 Jones paid Chambers $13,000 in exchange for the preparation
and for performing certain additional financial services. He also explained that he told
Chambers that RAFT’s revenue was $286,000 because he believed the question requesting
his “Gross Revenues for the Twelve (12) Months Prior to the Date of Disaster” on the
application sought his projected revenue. J.A. 250. However, he did not clarify why he
misunderstood the question or explain how he calculated the $286,000 projected revenue
figure. Jones also stated that he never reviewed the Rapid Intake Form but acknowledged
that he signed the Loan Authorization.
Thereafter, the Government filed a three-count indictment against Jones, charging
him with wire fraud in violation of 18 U.S.C. § 1343, false statements in violation of 18
U.S.C. § 1014, and transactional money laundering in violation of 18 U.S.C. § 1957. The
next day, the Government filed a petition to revoke Jones’ supervised release in the district
court. The petition alleged three new violations of law corresponding with the three counts
charged in the indictment. 4
B.
In January 2020, the district court held a revocation hearing, during which Jones
conceded that fraud occurred, but contended that he lacked the necessary mens rea to
Although the parties do not specifically say so, we glean from context that
3
Chambers was neither a legitimate financial advisor nor a CPA.
4
The district court later granted the Government’s motion to dismiss the indictment.
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establish any violation of law because Chambers filled out and submitted the Rapid Intake
Form and Jones did not know that it contained false statements. 5
Opposing that position, the Government provided evidence that it argued proved
that Jones knew about and participated in the fraud. For example, in addition to the
evidence recited above, the Government presented Jones’ bank statements, which showed
that in the three months following receipt of the loan, Jones transferred more than $19,000
of the loan into his personal account, which he categorized as CEO salary payments. 6 The
Government also introduced evidence that the additional financial services that Chambers
allegedly provided in exchange for the $13,000 consisted solely of a five-year business
forecast, which was only four pages long, included multiple typographical errors, and
projected that RAFT’s 2020 income would be $364,000.
The Government argued that this evidence demonstrated that Jones had the requisite
mens rea for the alleged violations. It first asserted that Jones must have been involved in
the fraud because Chambers could not have filled out the application without Jones’
assistance, and that she had to obtain Jones’ email address, phone number, and the 1999
5
Each of the alleged crimes requires either an intent to defraud or knowledge of the
falsity: Wire fraud requires the government to show the defendant “devised or intended to
devise a scheme to defraud,” which in turn necessitates “that the defendant acted with the
specific intent to defraud.” United States v. Wynn, 684 F.3d 473, 477–78 (4th Cir. 2012)
(cleaned up). A conviction for making false statements demands that the defendant
“knowingly made the false statement[s].” United States v. Smith, 29 F.3d 914, 916 (4th Cir.
1994). And to prove money laundering, the government must show that the defendant
“knowingly engage[d] or attempt[ed] to engage in a monetary transaction in criminally
derived property.” 18 U.S.C. § 1957(a).
6
The loan was also used for various business-related expenses, such as the purchase
of a semi-truck and insurance.
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incorporation date from Jones, evidencing his involvement in the fraud. Additionally, the
Government contended that Jones’ $13,000 payment to Chambers demonstrated Jones’
participation in the fraud because the SBA prohibited a business owner from paying a third
party more than $2,500 to fill out a loan application and Jones’ much larger payment
indicated a fraudulent scheme. Although Jones asserted that the $13,000 included payment
for other financial services in addition to the application preparation, the Government
pointed out that the only evidence of other financial services was the four-page financial
forecast, which the Government posited was a cover up. The Government further argued
that the forecast was a “sham” because it was “full of errors and things that don’t make
sense” and was dated the same day as the $13,000 check and the day after the loan was
deposited into Jones’ account. J.A. 134–35. Finally, the Government contended that, at a
minimum, Jones was willfully blind because he could not have believed that he was entitled
to the money after just starting his business upon his release from prison.
In his defense, Jones introduced text messages and email correspondence between
him and Chambers, which indicated that Chambers filled out and submitted the Rapid
Intake Form. For example, an email from Chambers to Jones stated, “Application
submitted,” and provided an application number. J.A. 113. Jones also introduced evidence
that the EIDL application was submitted from a device in Cleveland, Ohio, where
Chambers was located.
Additionally, Jones called Randy Walker, an expert in the field of polygraph
examinations. Walker testified that he conducted a polygraph examination of Jones and
asked him four relevant questions: (1) whether Shay Chambers prepared and signed the
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application, to which Jones answered “yes”; (2) whether Jones ever saw the application, to
which he answered “no”; (3) whether Jones knew Shay Chambers was lying on the
application, to which he answered “no”; and (4) whether Jones believed he was eligible for
the EIDL because it was based on business projections, to which he answered “yes.” J.A.
127. Walker stated that the examination “indicated that [Jones] was being truthful when he
made those assertions.” J.A. 130.
Jones represented that this evidence supported his contention that Chambers
submitted the loan application and that Jones never saw the Rapid Intake Form, which was
the only document that included the false statements. Although he signed the Loan
Authorization, certifying that everything in the Rapid Intake Form was true, Jones
maintained that he genuinely believed that everything was true and therefore did not intend
to commit fraud. Lastly, Jones argued that he was not willfully blind; he was simply not a
sophisticated business owner and erroneously but reasonably relied on the advice of a
purported financial expert.
The district court concluded that the Government proved its case by a
preponderance of the evidence, as is required for the revocation of supervised release. It
reasoned that “plenty of information included in that application had to come from Mr.
Jones, including the startup date of 1999.” J.A. 146. Without the inclusion of the 1999 date,
the district court noted, “it would [have been] obvious that he was not eligible for the loan”
because it would have been clear that he did not have any revenue in the previous twelve
months, a prerequisite for obtaining relief. J.A. 146. The district court also explained that
the “$286,000 [projected revenue] number is pure fiction. Not based upon any history of
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performance, any number of employees[. A]ll these things were false statements that were
provided to obtain the loan in a fraudulent way.” J.A. 146–47. At the very least, the district
court determined that Jones was willfully blind because “[y]ou just don’t certify . . . factual
information to get a six-figure loan without making a reasonable inquiry.” J.A. 147.
Thereafter, the district court sentenced Jones to twenty-four months’ imprisonment
and five years’ supervised release. The district court did not orally pronounce any specific
conditions of supervised release, but a later written judgment included four mandatory and
nineteen discretionary conditions.
Jones timely appealed, bringing three challenges. First, Jones asserts that the district
court abused its discretion by revoking Jones’ supervised release because he did not have
the necessary mens rea to commit the alleged violations of law. Second, Jones argues that
the district court erroneously failed to pronounce Jones’ discretionary conditions of release.
Finally, Jones contends that his sentence is procedurally unreasonable because the district
court predominately based his sentence on the seriousness of his offense.
We have jurisdiction under 28 U.S.C. § 1291.
II.
Jones first argues that the district court abused its discretion by revoking his
supervised release. We disagree.
If a court “finds by a preponderance of the evidence that the defendant violated a
condition of supervised release,” it can revoke the defendant’s release and “require the
defendant to serve in prison all or part of the term of supervised release.” 18 U.S.C.
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§ 3583(e)(3). “We review a district court’s ultimate decision to revoke a defendant’s
supervised release for abuse of discretion,” evaluating the court’s factual findings
underlying the revocation for clear error. United States v. Padgett, 788 F.3d 370, 373 (4th
Cir. 2015). “Clear error occurs when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” United States v. Harvey, 532 F.3d 326, 336–37 (4th Cir. 2008) (cleaned
up).
As noted, one of Jones’ conditions of supervised release prohibited him from
committing any new violations of law. Jones contends that he could not have had the
requisite mens rea to commit any of the alleged violations because he presented evidence
that Chambers prepared and submitted the Rapid Intake Form that contained the false
representations about which Jones had no knowledge. This understanding of what
happened, he suggests, is bolstered by the fact that he opened RAFT’s bank account prior
to communicating with Chambers and the fact that he voluntarily informed Gravely about
the EIDL. Jones posits that he is simply an unsophisticated person who justifiably relied
on a purported expert.
But, to the contrary, there is ample evidence that Jones provided false information
to Chambers and did not simply rely on her advice as an alleged expert. Most obviously,
Jones admitted that he provided the $286,000 revenue figure to Chambers. Although he
contends that he believed that the pertinent application question asked for future
projections, even if that’s true, that figure has no support. Jones offered no basis to believe
that he would make $286,000 in the next year, especially considering that he had recently
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been released from prison and had just incorporated the business. That figure alone was a
false statement that Jones used to obtain the loan and sufficiently supported the alleged
violations.
Additionally, there is evidence suggesting that Jones paid Chambers to commit the
fraud. Jones paid Chambers $13,000 to fill out the application—much more than was
allowed—indicating a fraudulent scheme. He suggests that the money included payment
for additional financial services, but the only evidence of other services provided by
Chambers was the forecast, which the district court reasonably concluded appeared to be a
cover up for the fraud. The forecast looks illegitimate, contains many typographical errors,
and predicts high success for a brand-new business.
Further, after receiving the money, Jones paid himself over $19,000 without
disclosing the income to Gravely or explaining how he earned that money, providing even
more evidence of fraud. Thus, the district court’s account of the evidence—finding that
Jones had the requisite mens rea and did not merely rely on Chamber’s alleged advice in
good faith—has ample support in and is plausible in light of the record. 7 See Anderson v.
City of Bessemer City, 470 U.S. 564, 573–74 (1985) (“If the district court’s account of the
evidence is plausible in light of the record viewed in its entirety, the court of appeals may
not reverse it[.]”). Accordingly, we affirm the district court’s revocation of Jones’
supervised release.
7
Because we agree that there is sufficient evidence that Jones had the requisite intent
to defraud, we do not discuss the court’s alternative finding of willful blindness.
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III.
Nonetheless, we agree with Jones—as does the Government—that the district court
erroneously failed to orally pronounce Jones’ discretionary conditions of release at the
revocation hearing. See United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021)
(“[T]o sentence a defendant to a non-mandatory condition of supervised release, the
sentencing court must include that condition in its oral pronouncement of a defendant’s
sentence in open court.”). Accordingly, we vacate Jones’ sentence and remand for
resentencing. See United States v. Rogers, 961 F.3d 291, 300–01 (4th Cir. 2020). 8
IV.
For the foregoing reasons, we affirm the district court’s revocation of Jones’
supervised release. However, we vacate Jones’ sentence and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
8
Because we remand for resentencing, we need not consider Jones’ additional
argument that his sentence was plainly unreasonable because the district court
predominantly relied on impermissible sentencing factors. However, we note that “in
fashioning a revocation sentence, ‘the court should sanction primarily the defendant’s
breach of trust, while taking into account, [only] to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.’” United States v. Webb, 738
F.3d 638, 641 (4th Cir. 2013) (quoting U.S. Sent’g Guidelines Manual ch. 7, pt. A(3)(b)
(U.S. Sent’g Comm’n 2012)). The sentencing court “may not impose a revocation sentence
based predominately on the seriousness of the releasee’s violation or the need for the
sentence to promote respect for the law and provide just punishment.” Id. at 642. To do so
would make the sentence procedurally unreasonable and would be grounds for remand and
resentencing. See United States v. Pennington, No. 21-4664, 2022 WL 2702577, at *2 (4th
Cir. July 12, 2022).
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