United States v. James Van Doren , 800 F.3d 998 ( 2015 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-3685
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    James Van Doren
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - Fayetteville
    ____________
    Submitted: June 11, 2015
    Filed: September 3, 2015
    ____________
    Before GRUENDER, BEAM, and BENTON, Circuit Judges.
    ____________
    BEAM, Circuit Judge.
    James Van Doren appeals his conviction and sentence as well as the district
    court's1 denial of his motion to withdraw his plea; Van Doren also appeals the denial
    of his motion for reconsideration of this motion to withdraw; the district court's
    1
    The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
    the Western District of Arkansas.
    refusal to vacate the money judgment for $22,000; and the district court's order
    applying Van Doren's $25,000 cash bond toward payment of a fine, special
    assessment, and satisfaction of the money judgment.2 For the reasons stated herein,
    we affirm.
    I.    BACKGROUND
    In 2013, a grand jury charged James Van Doren and two codefendants in a
    multicount indictment containing various counts of bankruptcy fraud, money
    laundering, wire fraud, and similar charges, all related to financial dealings between
    the three men charged. The twenty-seven-count, third superseding indictment
    specifically named Van Doren in seven counts, and he ultimately pled guilty to one
    count, count 24, which charged Van Doren with money laundering by engaging in
    monetary transactions in property derived from specified unlawful activity in
    violation of 18 U.S.C. § 1957.
    As relevant to this matter, and in general terms, the third superseding
    indictment contained allegations of an elaborate scheme by Brandon Barber, Van
    Doren, and Barber's attorney K. Vaughn Knight to defraud Barber's creditors by
    concealing income, assets, and funds from them in order to allow Barber to use those
    funds for his benefit, including for his personal expenses. The dealings between the
    men generally stemmed from Barber's extensive real estate development,
    construction, and sales, and the various businesses created to handle Barber's business
    ventures. The resulting bankruptcy fraud, wire fraud, and money laundering
    allegations, along with the related conspiracy charges, stem from these many dealings
    2
    Van Doren's notice of appeal includes the latter two orders but he makes no
    reference to them in his briefing and argument on appeal and thus we do not address
    them here. See Griffith v. City of Des Moines, 
    387 F.3d 733
    , 739 (8th Cir. 2004)
    (arguments not briefed are considered abandoned on appeal).
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    with Barber. Noted previously, Van Doren pled guilty to count 24, which specifically
    alleged:
    On or about the 29th day of October, 2008, in the Western District of
    Arkansas, Fayetteville Division and elsewhere, the defendants, Brandon
    Lynn Barber and James Van Doren, aided and abetted by each other and
    others known and unknown to the grand jury, did knowingly engage in
    a monetary transaction through a financial institution, affecting
    interstate commerce, in criminally derived property of a value greater
    than $10,000, that is, by causing $22,000 to be transferred from a
    Citibank Account in New York in the name of James Van Doren to a
    First Security Bank account in Fayetteville, Arkansas in the name of the
    Barber Group, an entity owned by Barber, such proceeds having
    derived from a specified unlawful activity, that is wire fraud, in violation
    of 18 U.S.C. § 1343. All in violation of 18 U.S.C. §§ 1957 and 2.
    Particular transfers of money between Barber and Van Doren formed the basis for
    Van Doren's guilty plea and the district court's loss calculations at sentencing. The
    factual basis for the guilty plea states:
    On or about October 29, 2008, in the Western District of Arkansas, and
    elsewhere, James Van Doren, aided and abetted by Brandon Barber,
    engaged in a monetary transaction through a financial institution,
    affecting interstate commerce, in criminally derived property of a value
    greater than $10,000. Van Doren had agreed with Barber to conceal
    certain amounts of Barber's income and transactions from creditors. As
    part of this scheme and artifice to hide money from and thereby defraud
    his creditors, on or about September 29, 2008, Barber endorsed a check
    payable to him in the amount of $64,000 over to Van Doren. Van Doren
    deposited this check into his Citibank Account in New York. On or
    about October 29, 2008, Van Doren wired $22,000 of these funds from
    his Citibank account in New York, to an account at First Security Bank
    in Fayetteville, Arkansas, in the name of The Barber Group, controlled
    by Barber. Van Doren agreed and intended to help Barber conceal these
    funds and defraud Barber's creditors. The records and evidence would
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    further show that the specified unlawful activity for this transaction was
    wire fraud, specifically a wire transaction in furtherance of the scheme
    to defraud Barber's creditors of $64,000 by concealing these funds to
    make it appear that some of the funds belonged to Van Doren, when in
    fact, Van Doren knew and agreed that the funds would be used by
    Barber for his benefit, including his personal living expenses. The
    banks involved were FDIC insured and the use of the wires in some way
    or degree affected interstate commerce.
    Van Doren later moved to withdraw his plea, advancing that he was "compelled
    by conscience to act with honesty and integrity . . . [and therefore could not] honor
    a commitment to truthfulness and continue to affirm a legal position that is contrary
    to the truth." He specifically clarified that his claim was not that the district court
    committed any procedural error under the Federal Rules of Criminal Procedure during
    its acceptance of his guilty plea, but rather, in his own words, his request to withdraw
    his plea was "based solely on his factual innocence." The district court denied Van
    Doren's motion to withdraw his plea as well as his motion for reconsideration of the
    denial, holding that his claim of innocence was insufficient to overcome his sworn
    testimony acknowledging his guilt and that there was a sufficient factual basis
    supporting the charge. The district court sentenced Van Doren to fifteen months'
    imprisonment followed by a two-year term of supervised release. Van Doren appeals
    these rulings and the sentence imposed.
    II.   DISCUSSION
    A.     Plea
    We review the denial of a motion to withdraw a guilty plea for an abuse of
    discretion. United States v. Gamble, 
    327 F.3d 662
    , 663 (8th Cir. 2003). Relevant
    here, under Federal Rule of Criminal Procedure 11(d), a defendant may withdraw a
    plea of guilty before the court imposes a sentence if "the defendant can show a fair
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    and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). "'While
    the standard is liberal, the defendant has no automatic right to withdraw a plea.'"
    United States v. Heid, 
    651 F.3d 850
    , 853 (8th Cir. 2011) (quoting United States v.
    Ramirez-Hernandez, 
    449 F.3d 824
    , 826 (8th Cir. 2006)). Rule 11(b)(3) additionally
    mandates that "[b]efore entering judgment on a guilty plea, the court must determine
    that there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3). A defendant may
    establish a fair and just reason for withdrawing his guilty plea by demonstrating that
    his plea is not supported by an adequate factual basis. 
    Heid, 651 F.3d at 855-56
    .
    Van Doren renews his contention that an inadequate factual basis existed for
    his guilty plea and, thus, that a fair and just reason exists for withdrawing the plea.
    The crux of Van Doren's claim is that because count 24 does not specify the facts
    supporting the basis for the underlying wire fraud charge (the "specified unlawful
    activity" supporting the money laundering charge), we look to count 23 of the
    indictment, where allegations of conduct underlying a wire fraud charge are
    explicated, to discern whether the conduct that Van Doren admitted to in his plea
    constitutes the offense charged in count 24. In that vein, Van Doren argues that,
    looking to count 23, the only specification in the indictment for the manner of
    commission of the wire fraud was through "a scheme and artifice to defraud Barber's
    creditors and for obtaining money and property by means of false and fraudulent
    pretenses, representations and promises."3 Proceeding with that reasoning, Van
    3
    In part, and in addition to myriad facts supporting the charge, count 23
    specifically alleges that during a specific time period, Van Doren
    did knowingly and intentionally combine, conspire, confederate and
    agree with . . . other[s] to devise and intend to devise a scheme and
    artifice to defraud Barber's creditors and for obtaining money and
    property by means of false and fraudulent pretenses, representations and
    promises thereby affecting financial institutions and other creditors and
    in furtherance of that scheme did transmit and cause to be transmitted
    certain wire communications in interstate commerce. All in violation of
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    Doren argues that because no other means of committing the offense was charged,
    and because the government relied upon a concealment theory to prove the wire fraud
    here, it necessarily "failed to identify a single alleged falsity, fraudulent pretense,
    misrepresentation or promise" committed by Van Doren and thus fell short of proving
    the requisite wire fraud supporting the money laundering charge. Van Doren
    maintains that he was engaging in routine banking transactions and that the entire
    transaction was completely truthful at all times–that he "misrepresented nothing."
    Accordingly, Van Doren claims there was no factual basis to support the guilty plea
    in count 24.
    We agree with Van Doren that the determinative issue in this matter is whether
    the factual basis supporting the plea suffices to establish the offense charged in the
    indictment as required, but our agreement ends there. See United States v. Cheney,
    
    571 F.3d 764
    , 769 (8th Cir. 2009) (describing when a guilty plea is supported by a
    sufficient factual basis). The factual basis of Van Doren's plea suffices to establish
    the offense charged.4 Based on the factual basis of the plea, Van Doren committed
    18 U.S.C. §§ 1349 and 1343.
    That specific language of count 23 tracks the language of § 1343 "Fraud by wire,
    radio, or television," which provides that "[w]hoever, having devised or intending to
    devise any scheme or artifice to defraud, or for obtaining money or property by means
    of false or fraudulent pretenses, representations, or promises" transmits by wire, any
    writing, sign, signal, picture or sound for the purpose of executing the fraudulent
    scheme, shall be fined or imprisoned not more than 20 years, or both. 18 U.S.C. §
    1343.
    4
    As an aside, even were we to indulge Van Doren's argument that there is no
    allegation of concealment in count 23, he fails in that pursuit. Count 23 first
    incorporates paragraphs 29-37 of the indictment, which paragraphs discuss the
    transactions underlying the wire fraud charge and allege, among other claims of
    concealment, that the transactions were completed in order to benefit Barber, "thereby
    concealing the money from creditors and placing it beyond the reach of his creditors."
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    wire fraud as charged. The plea agreement states that Barber transferred $64,000 to
    Van Doren pursuant to an agreement between them to conceal the funds from
    Barber's creditors so that the funds could later be directed back to Barber for his
    personal use.
    [T]he Supreme Court has placed some outside limits on what constitutes
    a scheme to defraud under sections 1341, 1343, and 1344, by finding
    that these statutes must be interpreted with an eye toward the common-
    law understanding of fraud. . . . "At common law, fraud has not been
    limited to those situations where there is an affirmative
    misrepresentation or the violation of some independently-prescribed
    legal duty . . . . Rather, even in the absence of a fiduciary, statutory, or
    other independent legal duty to disclose material information, common-
    law fraud includes acts taken to conceal, create a false impression,
    mislead, or otherwise deceive in order to prevent the other party from
    acquiring material information."
    United States v. Steffen, 
    687 F.3d 1104
    , 1113 (8th Cir. 2012) (third alteration in
    original), (quoting United States v. Colton, 
    231 F.3d 890
    , 898-99 (4th Cir. 2000)).
    Simply, wire fraud under § 1343 can be established by a fraudulent scheme involving
    concealment. Pasquantino v. United States, 
    544 U.S. 349
    , 356 (2005) ("[F]raud at
    common law included a scheme to deprive a victim of his entitlement to money. For
    instance, a debtor who concealed his assets when settling debts with his creditors
    So even were we to hold that the government could not proceed with its concealment
    theory unless count 23's recitation included language in addition to the language
    tracking the statutory definition of wire fraud and the facts already contained therein,
    the entirety of count 23 encompasses the theory nonetheless and the factual basis thus
    established the crime.
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    thereby committed common-law fraud.").5 Van Doren's plea is thus supported by an
    adequate factual basis, as there is sufficient evidence upon which this court can
    reasonably determine that Van Doren likely committed the offense as charged in
    count 24. 
    Cheney, 571 F.3d at 769
    ("A guilty plea is supported by an adequate
    factual basis when the record contains 'sufficient evidence at the time of the plea upon
    which a court may reasonably determine that the defendant likely committed the
    offense.'" (quoting United States v. Gamble, 
    327 F.3d 662
    , 664 (8th Cir. 2003))). The
    district court did not abuse its discretion in denying Van Doren's motion to withdraw
    his plea on this basis.6
    As to Van Doren's alleged actual innocence supporting a fair and just reason
    for his requested withdrawal, we have thoroughly analyzed Van Doren's arguments
    on appeal, carefully reviewed the record, and adopt the court's thorough and well-
    5
    In the instant analysis, Van Doren's insistence that he had no legal duty to
    speak and, thus, cannot be criminally liable for participating in these "lawful"
    transactions misses the mark. The claim of wire fraud in this matter is not premised
    upon Van Doren's nondisclosure but rather on Van Doren's act of knowingly helping
    Barber fraudulently conceal money from his creditors, among other similar
    allegations, and their use of wires to do so. This collective conduct of fraudulent
    concealment is the basis for the wire fraud charged. "'[T]he common law clearly
    distinguishes between concealment and nondisclosure. The former is characterized
    by deceptive acts or contrivances intended to hide information, mislead, avoid
    suspicion, or prevent further inquiry into a material matter. The latter is characterized
    by mere silence.'" 
    Steffen, 687 F.3d at 1114
    (quoting 
    Colton, 231 F.3d at 898-99
    ).
    This indictment alleges acts to conceal.
    6
    Although we resolve Van Doren's challenge based on his admission to wire
    fraud, we note that the government need not always prove that a defendant convicted
    under 18 U.S.C. § 1957 participated in the specified unlawful conduct underlying a
    money laundering charge. Instead, the government need only show that the defendant
    knew that the money was criminally derived. 18 U.S.C. § 1957(c); United States v.
    Hare, 
    49 F.3d 447
    , 452 (8th Cir. 1995); United States v. Lombardi, 
    5 F.3d 578
    , 570
    n.3 (1st Cir. 1993).
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    reasoned orders on this issue. 8th Cir. R. 47B. We therefore affirm the district court
    in all respects on Van Doren's motions to withdraw his plea and reconsideration of
    the same following the district court's initial denial.
    B.     Sentencing
    Finally, Van Doren claims the district court erroneously calculated the offense-
    level enhancements and, as a result, improperly increased his Guidelines range. He
    asserts the loss calculation should have been limited to the value of what he claims
    to be the laundered funds–which he claims was $22,000 (i.e., the amount Van Doren
    wired to The Barber Group after depositing $64,000 into his own bank account in
    New York)–as opposed to the $244,000 amount utilized by the district court in
    arriving at its sentence calculation. This would have resulted in a four-level increase
    rather than the twelve-level increase imposed. The $244,000 figure utilized by the
    district court in its sentence calculation is comprised of three financial transactions:
    the $64,000 check that is the subject of the factual basis in Van Doren's plea; $30,000
    cash delivered to Van Doren by Barber and deposited by Van Doren into a safe
    deposit box owned by Van Doren; and $150,000 wired by Barber's attorney to a bank
    account in New York in the name of Epsilon Investments, LLC, an entity allegedly
    owned by Van Doren.
    "We review de novo the 'legal conclusions a district court reaches in order to
    apply an enhancement for purposes of calculating an advisory guidelines range . . .
    while the factual findings underpinning the enhancement are reviewed for clear
    error.'" United States v. Battle, 
    774 F.3d 504
    , 516 (8th Cir. 2014) (alteration in
    original) (quoting United States v. Butler, 
    594 F.3d 955
    , 965 (8th Cir. 2010), cert.
    denied, 
    135 S. Ct. 1881
    (2015)). "'[S]entencing judges are required to find sentence-
    enhancing facts only by a preponderance of the evidence.'" United States v.
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    Norwood, 
    774 F.3d 476
    , 479 (8th Cir. 2014) (per curiam) (quoting United States v.
    Scott, 
    449 F.3d 1040
    , 1043 (8th Cir. 2006)).
    Section 2S1.1(a) of the Guidelines describes how a district court must calculate
    the base offense level for the crime of money laundering. Section 2S1.1(a)(1)
    provides that if, as here, the defendant committed the underlying offense, then the
    offense level for the underlying offense serves as the base offense level for the money
    laundering crime. U.S.S.G. § 2S1.1(a)(1). As discussed above, the facts in the plea
    agreement establish that Van Doren aided and abetted Barber in committing the wire
    fraud offense that served as the basis for the money laundering charge in count 24.
    Accordingly, the district court appropriately calculated Van Doren's base offense
    level using the guideline for the wire fraud offense. U.S.S.G. § 2B1.1. The district
    court concluded that the base offense level for the wire fraud offense was six, and the
    court added a mandatory one-level increase for a money laundering conviction under
    18 U.S.C. § 1957. U.S.S.G. §§ 2B1.1(a)(2) and 2S1.1(b)(2)(A). Applying §
    2B1.1(b)(1)(G), the district court additionally increased Van Doren's offense level by
    twelve after concluding that all three transfers alleged in relation to Van Doren were
    part of the same scheme to defraud that formed the basis for the wire fraud offense.
    U.S.S.G. § 2B1.1(b)(1)(G) (proscribing that if a defendant is convicted of an offense
    involving fraud or deceit and the loss exceeded $200,000, a twelve-level
    enhancement applies).
    The district court committed no error in its sentencing calculations, correctly
    calculated the losses associated with the wire fraud offense, and we find no clear error
    in its factual findings underpinning the calculation. Section 1B1.3(a) provides that
    unless otherwise specified, the specific offense characteristics (i.e., loss calculations)
    shall be determined on the basis of all acts and omissions committed, aided, and
    abetted, or willfully caused by the defendant, and in the case of a jointly undertaken
    criminal activity, "all reasonably foreseeable acts and omissions of others in
    furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A),
    -10-
    (B). Too, conduct comprising a dismissed count may be used as relevant conduct for
    sentencing purposes. United States v. Andreano, 
    417 F.3d 967
    , 970 (8th Cir. 2005).
    Evidence of the three transactions discussed here, and the district court's use of them
    in its sentencing calculation, was foremost at issue during the sentencing hearing, and
    all of these transactions formed the basis of the wire fraud and money laundering
    charges against Van Doren. The district court did not clearly err in determining that
    the three financial transactions were part of a single underlying scheme to defraud
    and thus accurately calculated Van Doren's sentence according to the Guidelines.
    III.   CONCLUSION
    For the reasons stated herein, we affirm.
    ______________________________
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