United States v. Arthur Weiss

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTHUR SANFORD WEISS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00249-TDS-1)
Argued: March 20, 2014 Decided: June 6, 2014
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Niemeyer and Judge Diaz joined.
ARGUED: Charles LeRoy White, II, Greensboro, North Carolina, for
Appellant. Todd Alan Ellinwood, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, Clifton T. Barrett, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
HAMILTON, Senior Circuit Judge:
On appeal, Arthur Weiss (Weiss) challenges his 185-month
sentence, following his plea of guilty to one count of wire
fraud, 18 U.S.C. § 1343, one count of money laundering, id. §
1957, one count of making a false statement on a loan
application to a financial institution, the accounts of which
are insured by the Federal Deposit Insurance Corporation (FDIC),
id. § 1014, and one count of corrupt interference with the
internal revenue laws of the United States, 26 U.S.C.
§ 7212(a). We affirm.
I.
The following facts either underlie the counts to which
Weiss pled guilty or constitute relevant conduct for sentencing
purposes.
From sometime in 2003 until mid-2012, Arthur Weiss (Weiss)
owned and operated several professional employer organizations
in North Carolina. A professional employer organization (PEO)
provides human resource functions, including payroll processing,
for companies through employee leasing agreements. Under North
Carolina law, PEOs are required to be licensed and regulated by
the North Carolina Department of Insurance. North Carolina
Professional Employer Organization Act, N.C. Gen. Stat.
§§ 58-89A-1 to 180.
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During this time frame, Weiss falsely held himself out as a
Certified Public Accountant by using the initials “CPA” on his
letterhead, on his business cards, and in his email address
(artweisscpa@aol.com). The record also contains evidence that
Weiss provided a brochure to a potential client, whom he later
acquired as an actual client, outlining the services offered by
his PEO named Employee Alternatives, LLC (EA), including payroll
processing, tax services, and securing workers’ compensation
insurance. The EA brochure stated that “[w]e deposit your
payroll taxes, file payroll tax returns and assume full
responsibility for the accuracy and timeliness of those
processes.” (J.A. 244) (internal quotation marks omitted).
Other EA services included preparation and filing of Internal
Revenue Service (IRS) Form 941 (Employer’s Quarterly Federal
Income Tax Return) and making deposits for federal unemployment
insurance. In the EA brochure, Weiss listed himself as a CTA,
which can stand for either “‘Certified Tax Accountant’” or
“‘Chartered Tax Advisor,” and listed himself as an ATA, which
stands for “‘Accredited Tax Advisor.’” Id.Through his various PEO entities, at least twenty-two
companies hired Weiss. Weiss collected funds from client
companies to pay the wages of the companies’ respective leased
employees along with a fee for the payroll services. Weiss then
deposited such funds into bank accounts he controlled. Weiss
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then instructed third-party payroll companies to actually
calculate the applicable state and federal income tax
withholdings. The third-party payroll companies either paid the
employees their net income directly or advised Weiss of the net
amounts due; thereafter Weiss would disburse the net paycheck
funds to the employees. On many occasions, Weiss failed to pay
the state and federal withholdings deposited with his PEO
entities to the IRS and relevant state revenue agencies,
converting such funds to his own use.
Weiss also collected funds from his client companies to
secure workers’ compensation insurance for their leased
employees, but failed to secure the level of coverage for which
he collected premiums. He converted the excess premium payments
to his own use.
Weiss stipulated for sentencing purposes that the losses
attributable to him totaled $4,132,044.16 in unpaid federal
employment taxes, $260,839.00 in unpaid state employment taxes,
and $559,663.02 in unpaid workers’ compensation insurance
premiums.
Another Weiss scam involved a bank insured by the FDIC.
Over time, Weiss established a close banking relationship with
Branch Bank and Trust (BB&T). From 2002 until 2008, Weiss
submitted false federal income tax returns to BB&T reflecting
higher income figures for himself than he had actually reported
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to the IRS. In reliance upon these misrepresentations, between
2004 and 2008, BB&T approved four loans to Weiss, totaling
$2,266,500.00, for the purchase of a lot and construction of a
home in Marion, North Carolina. The home securing such loans
subsequently sold in bankruptcy proceedings for $1,350,000.00.
Weiss failed to report any of his illegally obtained income
to the IRS. He stipulated that the illegal income he should
have declared on his federal income tax returns resulted in him
underpaying personal income taxes in the amount of
$1,093,813.00.
Weiss used a portion of the proceeds from his employment
tax scheme to purchase expensive jewelry. Between May 3, 2008
and May 11, 2008, Weiss and his wife traveled to Romania.
During the trip, Weiss falsely reported to his insurance carrier
that four pieces of jewelry with a total purchase price of
$129,900.00 were lost or stolen. He subsequently received a
check, via the United States Postal Service, from his insurance
carrier, for the appraised value of such jewelry--i.e.,
$177,480.00. Law enforcement authorities subsequently located
the same four items of jewelry in Weiss’ home.
II.
The presentence report (PSR) calculated Weiss’ total
offense level under the United States Sentencing Guidelines (the
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Guidelines or USSG) at 33 and his criminal history category at
III, resulting in an advisory sentencing range of 168 to 210
months’ imprisonment. Of relevance on appeal, the total offense
level of 33 included a 2-level enhancement for abuse of a
position of trust, pursuant to USSG § 3B1.3, to which Weiss
objected. The district court overruled his objection.
Also of relevance on appeal, the total offense level of 33
set forth in the PSR included 20 levels for a loss of more than
$7,000,000.00, but less than $20,000,000.00. See USSG
§ 2B1.1(b)(1)(K). Weiss objected to application of this loss
range, contending that he is only accountable for $6,050,000.00
in losses, thus placing him in the loss range of more than
$2,500,000.00, but less than $7,000,000.00. This loss range
results in an 18 level increase in his offense level as opposed
to 20. See USSG § 2B1.1(b)(1)(J). The district court overruled
this objection also. The district court found the total amount
of loss attributable to Weiss’ offense conduct and relevant
conduct to be $7,140,339.18.
Ultimately, the district court determined Weiss’ advisory
sentencing range under the Guidelines to be 168 to 210 months’
imprisonment, and sentenced him to 185 months’ imprisonment.
On appeal, Weiss challenges the procedural reasonableness
of his sentence on the basis that the district court erred: (1)
by increasing his offense level under the Guidelines by 2 levels
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pursuant USSG § 3B1.3 for abuse of a position of trust; (2) by
increasing his offense level under the Guidelines by 20 levels
pursuant to USSG § 2B1.1(b)(1)(K), instead of by only 18 levels
pursuant to USSG § 2B1.1(b)(1)(J); and (3) by failing sua sponte
to appoint various experts to assist in his defense at
sentencing. We address each of these assignments of error in
turn.
III.
USSG § 3B1.3 provides for a 2-level enhancement in the
defendant’s offense level if the defendant “abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense
. . . .” USSG § 3B1.3. The applicable commentary identifies a
position of trust as a role “characterized by professional or
managerial discretion (i.e., substantial discretionary judgment
that is ordinarily given considerable deference).” USSG §
3B1.3, comment. (n.1). The abuse-of-trust enhancement also
applies to imposters, so long as the imposter-defendant
“provides sufficient indicia to the victim that the defendant
legitimately holds a position of private or public trust.”
United States v. Brack, 651 F.3d 388, 392-93 (4th Cir. 2011)
(internal quotation marks omitted). “This is so because [i]n
making the misrepresentation, the defendant assumes a position
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of trust, relative to the victim, that provides the defendant
with the same opportunity to commit a difficult-to-detect crime
that the defendant would have had if the position were
legitimately held.” Id. at 393 (internal quotation marks
omitted).
Three factors guide the sentencing court in determining
whether a person held a position of public or private trust for
purposes of applying the USSG § 3B1.3 enhancement: (1) whether
the defendant had special duties or access to information not
available to other employees; (2) the extent of the defendant’s
discretion; and (3) whether the defendant’s acts indicate that
he is more culpable than similarly situated actors. Id. The
commentary to USSG § 3B1.3 also provides specific examples of
when the defendant’s abuse of a position of trust justifies
application of the enhancement: “an embezzlement of a client’s
funds by an attorney serving as a guardian, a bank executive’s
fraudulent loan scheme, or the criminal sexual abuse of a
patient by a physician under the guise of an examination.” USSG
§ 3B1.3, comment. (n.1). In contrast, the same commentary
provides that the “adjustment does not apply in the case of an
embezzlement or theft by an ordinary bank teller or hotel clerk
because such positions are not characterized by the above-
described factors.” Id.
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Here, in concluding Weiss should receive a USSG § 3B1.3
enhancement for abuse of a position of trust, the district court
found the following facts: (1) Weiss held himself out to be a
CPA; (2) CPAs have substantial discretionary judgment in making
determinations as to how to properly engage in the various
computations and decisions necessary to properly account for and
pay the various payroll taxes at issue in the present case and
most persons would regard CPAs to be regulated by the state; (3)
Weiss’ holding himself out as a CPA significantly facilitated
his fraud scheme by “g[iving] him certain credential with people
in business who would be willing to give him such type of
business and have him provide the services that one would
imagine that a [CPA] would faithfully and properly provide”; and
(4) Weiss’ holding himself out as a CPA significantly
facilitated the commission and concealment of his fraud scheme
by allowing him to manage payroll functions, including the
payment of state and federal tax withholdings to the proper
government agencies, “without any oversight.” (J.A. 154).
We review the factual findings underlying the district
court’s USSG § 3B1.3 enhancement for clear error. United States
v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000). To the extent the
district court undertook a legal interpretation of USSG § 3B1.3,
our review is de novo. United States v. Gormley, 201 F.3d 290,
296 (4th Cir. 2000).
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On appeal, Weiss concedes the government presented evidence
at sentencing that he used the CPA designation in many of his
business documents and on his business cards, and thus, “it may
be reasonable to infer that he held himself out as a CPA to at
least some of the victims.” (Weiss’ Opening Br. at 9).
However, Weiss contends that a USSG § 3B1.3 enhancement is
inapplicable in his case because “there was no evidence adduced
in any form that his false representation of himself as a CPA
induced any of these victims to do business with him or caused
them to repose a higher level of trust or confidence in him
whatsoever.” Id. In Weiss’ view, he merely provided payroll
and insurance agent services to his victim corporations and did
not act as their CPAs.
In support of his position, Weiss primarily relies upon our
decision in United States v. Caplinger, 339 F.3d 226 (4th Cir.
2003). The defendant in Caplinger misrepresented himself as an
accomplished physician in his efforts to attract investors in
his fraudulent schemes involving production of a fake wonder
drug used to treat HIV/AIDS. Id. at 229-30. In determining the
defendant’s offense level under the Guidelines, the district
court assessed a 2-level enhancement pursuant to USSG § 3B1.3
for abuse of a position of trust. Id. at 235. The defendant
challenged the enhancement on appeal.
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On appeal, we framed the issue as “whether Caplinger, by
posing as an accomplished physician in order to influence
potential investors, abused a position of trust with respect to
the victims of his fraud scheme within the meaning of” USSG
§ 3B1.3. Id. at 236. In answering this question in the
negative, we reasoned that while the false information about the
defendant’s credentials and experience assisted in convincing
investors and in making them more confident about their
investment, any trust the investors placed in the defendant was
not based on a special relationship he had with them as a
physician, but on their misplaced belief in the
misrepresentations about his credentials and the fake wonder
drug’s potential for success. Id. at 237. As a result, we
vacated the defendant’s sentence and remanded for resentencing
without the USSG § 3B1.3 enhancement. Id. at 238.
Weiss contends that the argument for applying the
enhancement in Caplinger is stronger than in his case because
the sentencing court in Caplinger found that the defendant’s
misrepresentations induced the victims to invest in his
fraudulent scheme, while in Weiss’ case, the record contains no
evidence that falsely holding himself out as a CPA induced any
victim to participate in any of his schemes in any way.
The government distinguishes Caplinger on the basis that,
in Caplinger, the defendant participated in an arms-length
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transaction with each of his victims as opposed to entering into
a fiduciary or personal trust relationship with his victims as
Weiss did.
The primary case upon which the government relies in
support of its position is Brack. In Brack, the defendant
Tiffanie Brack (Brack) posed as a bail bondsman at a North
Carolina jail in order to secure identifying information, cash,
and the title to two properties from an elderly gentleman
attempting to post bond for his granddaughter. 651 F.3d at 389.
Brack pled guilty to one count of wire fraud and one count of
aggravated identity theft. In sentencing Brack, the district
court applied a USSG § 3B1.3 enhancement for abuse of a position
of trust based upon Brack’s purported position as a bail
bondsman. Id. at 390.
Brack unsuccessfully challenged the enhancement on appeal.
On appeal, we first concluded that a bail bondsman in North
Carolina holds a position of public trust leading to the
assumption of certain fiduciary duties to their clients. Id. at
394. Second, we concluded that Brack’s purported position as a
bail bondsman significantly contributed to the commission or
concealment of her offenses because the position “provide[d] a
seemingly valid basis for her to make initial contact with [the
victim grandfather] at the jail, [and] it also allowed Brack to
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secure [the victim grandfather’s] identifying information
without revealing her criminal intent.” Id. at 395.
The government argues that the relevant facts in the
present case are on all fours with Brack in that (1) Weiss
represented himself throughout the course of his unlawful
activity as being a CPA, thus providing his victims sufficient
indicia that he was trustworthy and qualified to handle their
payroll processing, and (2) Weiss’ misrepresentations about
being a CPA created trust relationships with his clients which
allowed him to manage the gross payroll of several large
companies virtually unchecked.
We uphold the district court’s 2-level enhancement in
Weiss’ offense level pursuant to USSG § 3B1.3 for abuse of a
position of trust. “[T]he central purpose of § 3B1.3 is to
penalize defendants who take advantage of a position that
provides them with the freedom to commit a difficult-to-detect
wrong.” Id. at 393 (internal quotation marks and alteration
marks omitted). Here, there is more than sufficient evidence in
the record from which a reasonable person could infer that Weiss
had a trust relationship with at least one of his
victim-companies which provided him with the freedom to commit a
difficult-to-detect wrong. While all payroll processing
companies are not headed up by a CPA, when a CPA does head up a
payroll processing company, with the attendant required
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calculations for tax withholding and payments over to the IRS
and applicable state agency, the client company reasonably
believes that it has hired a licensed professional in the
accounting/tax field to ensure the proper processing of its
payroll liabilities and responsibilities. Weiss only had to
take advantage of his trust relationship with one client on one
occasion in order for the enhancement to apply. This fact is
easily inferred from the record evidence.
Caplinger is materially distinguishable on the basis that
the defendant in Caplinger did not have a trust relationship
with any of his investor victims. The present case is analogous
to Brack in the sense that we can infer from the evidence in the
present case that Weiss was able to perpetrate his fraud, at
least in part, because of a trust relationship with at least one
of his victim companies.
In sum, the district court did not err in increasing Weiss’
offense level by 2 levels pursuant to USSG § 3B1.3 for abuse of
a position of trust.
IV.
We now turn to Weiss’ challenge to the district court’s
loss calculation under the Guidelines. In calculating Weiss’
offense level under the Guidelines, the district court found the
amount of pecuniary harm foreseeable to Weiss with respect to
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his offense conduct and all relevant conduct to be
$7,140,339.18. This amount added 20 levels to Weiss’ base
offense level of 7 for a loss greater than $7,000,000.00, but
less than $20,000,000.00. USSG § 2B1.1(b)(1)(K). The district
court reached this figure by finding as follows: (1) Weiss
failed to pay the IRS $4,132,044.16 in employment taxes that he
collected from his client companies’ payrolls; (2) Weiss failed
to pay $260,839.00 in state taxes for his client companies; (3)
Weiss failed to pay $559,663.02 in workers’ compensation
premiums for his client companies; (4) Weiss fraudulently
obtained an insurance check of $177,480.00; (5) Weiss defrauded
BB&T of $916,500.00; and (6) Weiss owes $1,093,813.00 in
personal federal income tax on his illegal gains that he
knowingly and intentionally failed to report on his federal
income tax returns.
Below, Weiss did not take issue with the district court’s
total loss figure up to $6,046,526.18, which amount would have
added 18, as opposed to 20 levels to his base offense level of 7
for a loss greater than $2,500,000.00, but less than
$7,000,000.00. USSG § 2B1.1(b)(1)(J); see also (J.A. 121)
(Weiss’s attorney at sentencing: “[H]e is admitting or conceding
to 18 additional levels.”). Weiss also did not take issue with
the district court’s finding that he owes $1,093,813.00 in
personal federal income taxes on his illegal income. Weiss did,
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however, take issue with the district court’s inclusion of the
$1,093,813.00 amount as part of the total loss calculation with
respect to USSG § 2B1.1(b)(1). Weiss argued below that “the
income tax due on illegal gain cannot be included in the total
loss determination in addition to the illegal gain under [USSG]
§ 2B1.1(b)(1) without case authority or specific guideline
authority.” (J.A. 285). Weiss reasoned that because the
commentary to USSG § 2T1.1 (the Guideline specifically
pertaining to offenses involving taxation), expressly provides
for the counting of personal income tax due on illegally
obtained income derived from a defendant’s underreporting of
corporate income with respect to a Subchapter C corporation
which he solely owns, the absence of such express commentary in
USSG § 2B1.1 means that the United States Sentencing Commission
did not intend to include personal income taxes on illegally
obtained income as part of the loss calculation under USSG §
2B1.1(b)(1).
At sentencing below, the district court overruled Weiss’
objection to including the $1,093,813.00 in personal federal
income tax due on his illegal gains as part of the total loss
figure under USSG § 2B1.1(b)(1) because the plain language of
USSG § 2B1.1 and its accompanying commentary allows for such
inclusion. In this regard, the district court relied upon
Application Note 3(A)(iv) to USSG § 2B1.1, which provides that,
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for purposes of determining the loss under USSG § 2B1.1(b)(1),
“‘reasonably foreseeable pecuniary harm’ means pecuniary harm
that the defendant knew or, under the circumstances, reasonably
should have known was a potential result of the offense.” USSG
§ 2B1.1, comment. (n.3(A)(iv)). Consistent with the plain
language of this commentary, the district court counted both (1)
the pecuniary harm to Weiss’ client companies resulting from
Weiss’ failure to pay the payroll taxes due on his clients’
payroll and (2) the individual federal income taxes due from
Weiss on such illegally obtained gains because Count 35,
charging Weiss with corrupt interference with internal revenue
laws in violation of 26 U.S.C. § 7212(a), alleged separate overt
acts of Weiss keeping the payroll taxes for himself and then
filing individual federal income tax forms without declaring
such illegally obtained funds as personal income. In this
regard, the district court specifically stated:
The defendant committed frauds on other individuals
and companies, and he also defrauded the government in
the process by not paying tax on the money that he
defrauded others out of. Those are two separate
losses, and it seems appropriate to calculate both as
a part of the loss amount, particularly where he is
charged with both. If I were not to do that, then he
would be getting the benefit of a lower guideline
range that does not fully incorporate the loss that
was both intended and which occurred in this case.
(J.A. 115-16).
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As for Weiss’ argument with regard to the commentary in
USSG § 2T1.1, the district court rejected it on the ground that
the United States Sentencing Commission added such commentary as
a clarifying amendment in response to a circuit split on the
issue of whether a defendant’s personal income taxes due on
illegally obtained income should count in the total loss
calculation under USSG § 2T1.1, which means the United States
Sentencing Commission intended all along for (1) the pecuniary
harm resulting from a defendant’s underreporting of corporate
income with respect to a Subchapter C corporation which the
defendant solely owns and (2) the pecuniary harm resulting from
the defendant’s failure to claim as individual income the funds
he obtained from underreporting the corporate income to be
counted as part of the pecuniary harm foreseeable to the
defendant from his offense and relevant conduct. The district
court concluded that, if anything, the clarifying amendment
strengthened the case for counting the foreseeable loss to the
government in the form of unpaid federal income taxes resulting
from Weiss’ failure to claim his ill-gotten gains as personal
income on his federal income tax returns.
On appeal, Weiss continues to press this same line of
argument he pressed below. Notably, Weiss did not cite a single
case in support of his position below and does not do so in his
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Opening Brief on appeal. He also does not address this issue at
all in his Reply Brief on appeal.
The government’s argument in response essentially tracks
the reasoning of the district court. Additionally, the
government points out that the Guidelines’ grouping rules
support the district court’s inclusion of Weiss’ personal income
liability on his unreported illegally obtained income: “‘In the
case of counts grouped together pursuant to § 3D1.2(d), the
offense level applicable to a Group is the offense level
corresponding to the aggregated quantity, determined in
accordance with Chapter Two and Parts A, B and C of Chapter
Three.’” (government’s Br. at 47) (quoting USSG § 3D1.3(b)).
USSG § 3D1.2(d) applies when the offense level, as in the
present case, is determined largely on the basis of the total
amount of harm or loss.
We find Weiss’ position wholly unpersuasive. First, Weiss’
position ignores the plain language of the relevant Guideline
sections and their corresponding commentary, including the
relevant definition for pecuniary harm in Application Note
3(A)(iv) to USSG § 2B1.1 and USSG § 3D1.3(b)’s direction to
aggregate the loss in the case of counts grouped together when
the offense level is determined largely on the basis of the
total amount of harm or loss. Second, the district court’s
reasoning in rejecting Weiss’ argument regarding USSG § 2T1.1 is
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on the money. The United States Sentencing Commission’s
addition of clarifying commentary to USSG § 2T1.1 in order to
address a similar counting issue with respect to underreporting
corporate income in no way supports Weiss’ position on this
issue. If anything, the commentary supports the district
court’s inclusion of Weiss’ individual federal income tax
liability for his ill-gotten gains on the basis that the United
States Sentencing Commission views the tax loss to the federal
government resulting from a defendant’s failure to report
illegally obtained income from an underlying tax related fraud
as a separate and distinct harm from such underlying fraud. The
crucial point is that the underlying offense is complete when a
defendant fraudulently diverts income to himself, so that when
the same defendant fails to report such fraudulently obtained
income as income on his federal income tax return, a second and
distinct offense is committed. That is the way the government
charged Weiss in this case in Count 35 to which he pled guilty.
Therefore, there is no merit to Weiss’ position that he should
not be held accountable for all of his offense conduct,
including filing individual federal income tax returns in which
he knowingly and intentionally failed to claim his illegally
gotten gains as income.
In sum, the district court’s loss figure with respect to
determining Weiss’ offense level under the Guidelines stands.
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V.
In his last issue on appeal, Weiss claims the district
court abused its discretion by failing sua sponte to appoint him
various experts to assist in his defense at sentencing.
According to Weiss, with respect to his sentencing, such failure
denied him his rights to fundamental fairness, due process of
law, and effective assistance of counsel because he did not have
expert assistance to help him in at least four ways. First,
Weiss claims that he needed the assistance of a tax expert to
accurately assess and challenge the $1,093,813.00 figure in the
PSR listed as the amount of personal income tax that he should
have paid on his illegally obtained income. * According to Weiss’
appellate attorney (different from his attorney below), Weiss
“apparently felt compelled to stipulate to that amount, because
he was unable to challenge it.” (Weiss’ Opening Br. at 18).
Second, Weiss contends that he needed expert assistance to
challenge the amount of the loss attributable to the loan fraud
allegations pertaining to BB&T. Third, Weiss contends that he
needed an expert witness to help him prove that his companies
*
According to the PSR, “[t]his amount was calculated by an
IRS agent using the defendant’s bank records, tax returns, and
paper and electronic documents seized during the May 26, 2010,
search of his residence.” (J.A. 253). The PSR went on to
characterize the $1,093,813.00 figure as “a conservative figure
allowing Defendant Weiss all allowable credits.” Id.
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were not, in fact, PEOs as defined under North Carolina law,
such that he could have avoided a sentencing enhancement under
USSG § 2B1.1(b)(10)(C) for using sophisticated means in the
implementation of his scheme. Fourth and finally, Weiss
contends that “common sense dictates that the sheer volume of
records and the complex analyses upon which the government
relied over the course of its four year investigation can only
be effectively cataloged, analyzed and challenged with expert
assistance.” (Weiss’ Opening Br. at 22).
As the government correctly contends, because Weiss never
requested any of the expert assistance he now claims was
critical to his ability to mount a successful defense at
sentencing, our review is limited to reviewing for plain error.
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). Under plain error review, an appellate
court has the discretion to correct a forfeited error if: (1)
there is error; (2) the error is plain (i.e., “‘clear’ or,
equivalently, ‘obvious,’”), Olano, 507 U.S. at 734; (3) the
error affects the defendant’s substantial rights; and (4) the
appellate court determines, after examining the particulars of
the case, that the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at
732-34.
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Weiss’ assignment of error regarding his need for experts
to aid in his defense at sentencing does not survive plain error
review. Assuming arguendo that Weiss can establish error as he
has alleged (a big stretch in and of itself), there is
absolutely no basis for us to conclude that such error is plain.
See id. at 734 (noting that an error is plain if it is “‘clear’
or, equivalently, ‘obvious’”). Accordingly, Weiss is entitled
to no relief with respect to his argument on appeal regarding
his need for expert assistance in preparing for his defense at
sentencing, which need he never made known to the district
court.
VI.
For the foregoing reasons, we affirm Weiss’ sentence in
toto.
AFFIRMED
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