United States v. Henoud

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4342
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN MAURICE HENOUD, a/k/a John Harvey, a/k/a
J. M. Harvey, a/k/a J. M. Hardey, a/k/a Jon M.
Hardey, a/k/a Jerry Geohn Davidson, a/k/a
George J. Mansour, a/k/a Richard L.
Harrington, a/k/a Dave Harvey,
Defendant - Appellant.
No. 05-4447
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RALPH COLLINS,
Defendant - Appellant.
No. 05-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHARON KAY MOORE,
Defendant - Appellant.
No. 05-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD CLARK MORRISON,
Defendant - Appellant.
No. 06-6156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN MAURICE HENOUD,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-04-4; 2:04-cr-00004-JBF-TE)
Submitted: November 30, 2006 Decided: April 20, 2007
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Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Nos. 05-4342, 05-4447, 05-4448, 05-4449 affirmed; No. 06-6156
dismissed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Gretchen L. Taylor,
Larry M. Dash, Assistant Federal Public Defenders, Frances H.
Pratt, Research and Writing Attorney, Norfolk, Virginia; Brett D.
Lucas, GABRIEL & ASSOCIATES, P.C., Virginia Beach, Virginia;
Charles R. Burke, Virginia Beach, Virginia; Keith Loren Kimball,
COLGAN, KIMBALL & CARNES, Virginia Beach, Virginia, for Appellants.
John Maurice Henoud, Appellant Pro Se. Paul J. McNulty, United
States Attorney, Michael C. Moore, Joseph E. DePadilla, Assistant
United States Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These consolidated appeals arise out of the convictions
of co-defendants John Maurice Henoud, Sharon Kay Moore, Ronald
Clark Morrison, and Ralph Collins. The charges against the
Defendants stem from various schemes to defraud businesses and
individuals under the aegis of a purported charity, the Youth-at-
Risk Foundation (“YARF”), and two businesses, Just Sports
Publications (“JSP”), and the Senior Shopping Guide (“SSG”). After
considering the various issues raised by the Defendants, we affirm
the sentences challenged by Henoud, Moore, and Collins, and affirm
the convictions challenged by Moore, Collins, and Morrison. Henoud
also appeals the district court’s denial of his motion for return
of property; we dismiss this appeal as moot.
Henoud was convicted of one count of conspiracy to commit
mail and wire fraud, in violation of 18 U.S.C. § 1349 (2000); ten
counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2
(2000); four counts of use of fictitious name to further mail fraud
scheme, in violation of 18 U.S.C. § 1342 (2000); ten counts of wire
fraud, in violation of 18 U.S.C. §§ 1343 and 2 (2000); one count of
fraud in connection with access devices, in violation of 18 U.S.C.
§§ 1029(a)(2), 1029(b)(1), and 1029(c)(1)(A)(i) (2000); one count
of conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h) (2000); five counts of promotional and concealment money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
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1956(a)(1)(B)(i) and 2 (2000); and eight counts of promotional
money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and
2 (2000). In appeal No. 05-4342, Henoud presents three arguments.
First, Henoud contends that the district court erred when it
applied a preponderance of evidence standard to the factual
findings underpinning the calculation of the advisory sentencing
guideline range, he asserts that the magnitude of the enhancements
applied required a higher standard of proof. Our decisions in
United States v. Urrego-Linares, 879 F.2d 1234, 1237 (4th Cir.
1989), and United States v. Pierce, 409 F.3d 228, 234 (4th Cir.
2005), foreclose this argument. See also United States v. Mares,
402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Second, Henoud challenges the district court’s
calculation of the amount of intended loss. Our review of the
district court’s loss calculation is for clear error. United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). At
sentencing, the district court makes a “reasonable estimate of the
loss, given the available information.” Miller, 316 F.3d at 503;
U.S. Sentencing Guidelines Manual § 2B1.1, comment. (n.2(C))
(2003). Enhancements under § 2B1.1(b) are determined by the amount
of loss suffered as a result of the fraud. The amount of loss is
the greater of the actual loss or the intended loss. USSG § 2B1.1,
comment. (n.2(A)). “Intended loss” is defined as “the pecuniary
harm that was intended to result from the offense . . . and . . .
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includes intended pecuniary harm that would have been impossible or
unlikely to occur.” USSG § 2B1.1, comment. (n.2(A)(ii)).
Consequently, the intended loss amount may be used, “even if this
exceeds the amount of loss actually possible, or likely to occur,
as a result of the defendant’s conduct.” Miller, 316 F.3d at 502.
Henoud’s argument that sister circuit courts of appeals
have used either a different methodology, or the amount of actual
loss, to derive a loss amount for sentencing purposes does not
compel the conclusion that the district court clearly erred in the
estimation of the intended loss in this case. As we stated in
Miller, the intended loss may include money that the defendant
might not have collected, or could not have collected. Id. Here,
the intended loss calculations were based on a methodology that
took into account the duration of the conspiracy, the number of co-
conspirators, and the extent to which their activities might have
impacted the community. We therefore conclude that the district
court did not clearly err in calculating the amount of the intended
loss.
Third, Henoud argues that his sentence is unreasonable
because it is greater than necessary to achieve the purposes of
sentencing and is disproportionately long when compared with the
sentences of both his co-defendants and defendants convicted of
more serious fraud offenses in other districts. Henoud’s sentence
of 360 months’ imprisonment was reasonable because it was within
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the correctly calculated advisory guideline range and was
determined according to a reasoned process in accordance with the
law. United States v. Green, 436 F.3d at 449, 457 (4th Cir. 2006).
In its discussion of each of the factors listed in 18 U.S.C.
§ 3553(a) (2000), the district court specifically addressed the
type of crime, the need for deterrence, the risk of recidivism, and
Henoud’s history and circumstances. We therefore reject his
contention that the sentence was greater than necessary to fulfill
the purposes of § 3553(a).
With respect to Henoud’s argument that his sentence is
disproportionately greater than that of his co-defendants, this
court has stated that a district court is not required to consider
the sentences of co-defendants, and further allows co-defendants
and co-conspirators to be sentenced differently for the same
offense. United States v. Foutz, 865 F.2d 617, 621 (4th Cir.
1989); United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004).
Similarly, we deem irrelevant a comparison of Henoud’s sentence to
the sentences imposed on defendants in other districts for
different conduct. We therefore conclude that the sentence the
district court imposed was reasonable, and we affirm Henoud’s
sentence in appeal No. 05-4342.
In appeal No. 06-6156, Henoud challenges the district
court’s denial of his motion to compel the release of a hard drive
seized as evidence pursuant to Fed. R. Crim. P. 41(g). The
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district court concluded that it lacked jurisdiction to consider
the motion during the pendency in this court of Henoud’s appeal of
his sentence, appeal No. 05-4342. We conclude it is unnecessary to
resolve whether the district court correctly dismissed Henoud’s
Rule 41(g) motion because our decision in the direct criminal
appeal removes the only potential jurisdictional impedment to the
district court’s consideration of the Rule 41(g) motion.
Accordingly, we dismiss the appeal in No. 06-6156, and Henoud may
refile his Rule 41(g) motion in the district court, where the
motion may be addressed on the merits.
In appeal No. 05-4448, Moore challenges: (1) the
sufficiency of the evidence, claiming she did not have the
requisite mens rea; and (2) the reasonableness of her sentence in
light of her particular circumstances.* Moore was convicted of one
count of conspiracy to commit mail fraud, in violation of 18 U.S.C.
§ 1349; six counts of mail fraud, in violation of 18 U.S.C. §§ 1341and 2; ten counts of wire fraud, in violation of 18 U.S.C. §§ 1343and 2; one count of conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h); one count of promotional and
concealment money laundering, in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2; and five counts of
*
Moore’s counsel has moved to withdraw due to his impending
retirement. We deny the motion without prejudice to its renewal if
counsel cannot complete his duties under the Fourth Circuit Plan in
Implementation of the Criminal Justice Act, § 5(2), by the time
counsel retires.
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promotional money laundering, in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i) and 2.
In reviewing a sufficiency challenge, “[t]he verdict of
a jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942). This court
“ha[s] defined ‘substantial evidence,’ in the context of a criminal
action, as that evidence which ‘a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.’” United States v.
Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)). In evaluating
the sufficiency of the evidence, this court does not “weigh the
evidence or review the credibility of the witnesses.” United
States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). When the
evidence supports differing reasonable interpretations, the finder
of fact decides which interpretation to believe. Id. Here, the
evidence presented at trial was sufficient for a reasonable jury to
conclude that Moore was aware of the fraudulent activities of
JSP/YARF and had the mens rea required for her offenses of
conviction.
With respect to Moore’s sentence, she does not contest
the calculation of the advisory guideline range, which called for
a sentence of between 210 and 262 months’ imprisonment. The
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district court imposed a variance sentence of 120 months, which was
ninety months below the low end of the guideline range. In so
doing, the district court stated that it considered several
§ 3553(a) factors, including Moore’s criminal history, her mental
health problems, her history as a victim of child sexual abuse, her
persistent drug and alcohol addiction, and the lesser role she
played in the scheme. Pursuant to our holding in Green, we find
the sentence reasonable because it “was selected pursuant to a
reasoned process in accordance with the law, in which the court did
not give excessive weight to any relevant factor, and which
effected a fair and just result in light of the relevant facts and
law.” 436 F.3d at 457. We therefore affirm Moore’s conviction and
sentence.
In appeal No. 05-4449, Morrison contends that the
evidence failed to establish beyond a reasonable doubt that he was
aware of the conspiracy or that he knowingly participated in the
conspiracy. Morrison was convicted of conspiracy to commit mail
and wire fraud, in violation of 18 U.S.C. § 1349; two counts of
mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; six counts of
wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; one count of
conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h); and one count of promotional and concealment money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
1956(a)(1)(B)(i) and 2. We have carefully considered the evidence
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and conclude that it is sufficient to support the finding that
Morrison had the mens rea required for the offenses for which he
was convicted. We therefore affirm Morrison’s conviction.
In No. 05-4447, Collins appeals from his conviction and
108-month sentence for conspiracy to commit mail and wire fraud, in
violation of 18 U.S.C. § 1349; six counts of mail fraud, in
violation of 18 U.S.C. §§ 1341 and 2; nine counts of wire fraud, in
violation of 18 U.S.C. §§ 1343 and 2; one count of conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h); and
one count of promotional and concealment money laundering, in
violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2.
Collins first argues that he was prejudiced by the
district court’s denial of his motion for severance because
evidence was admitted against Henoud, his co-defendant, that would
not have been admitted if Collins were tried separately. A pretrial
ruling on a motion for severance is within a trial court’s
discretion and will not be overturned “absent a clear abuse of that
discretion.” United States v. Rivera, 412 F.3d 562, 571 (4th Cir.
2005). Generally, individuals indicted together should be tried
together, and “[a] defendant is not entitled to severance merely
because separate trials would more likely result in acquittal, or
because the evidence against one defendant is not as strong as that
against the other.” United States v. Strickland, 245 F.3d 368, 384
(4th Cir. 2001) (internal quotation omitted). A defendant must
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instead show prejudice, and “[c]onvictions should be sustained if
it may be inferred from the verdicts that the jury meticulously
sifted the evidence.” United States v. Porter, 821 F.2d 968, 972
(4th Cir. 1987).
Collins claims that he worked only part-time with JSP,
and, if he were granted a separate trial, Henoud would have
testified that the business Collins directed out of his home, SSG,
was independent of JSP. Collins concedes, however, that the jury
was able to sift through the evidence at trial and determine that
Henoud had no involvement with SSG, as reflected by the jury’s
verdict finding Henoud not guilty of the one count that alleged his
involvement with SSG. Accordingly, we conclude that Collins has
not shown that he was prejudiced in the denial of his motion for
severance.
Second, Collins argues that evidence recovered from
searches of Henoud’s office and home was admitted in violation of
the rule against hearsay because there was no custodian of record
or business associate available to testify to the accuracy of the
records. Because Collins did not contemporaneously object to the
admission of the records, our review is for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993). We conclude that
the district court did not plainly err in admitting the evidence at
issue, and we affirm Collins’ convictions.
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Lastly, Collins challenges the district court’s
calculation of the amount of the intended loss and the number of
victims, both of which were used to compute the advisory sentencing
guideline range. In reviewing the calculation of the advisory
sentencing guideline range, this court “review[s] the district
court’s legal conclusions de novo and its factual findings for
clear error. United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006).
Here, the district court employed a reasonable
methodology to compute the intended loss, and, pursuant to our
decision in United States v. Bolden, 325 F.3d 471, 499-500 (4th
Cir. 2003), particularized its calculation to Collins’
participation in the conspiracy and his ability to foresee that
other JSP telemarketers would be engaged in the same type of fraud
as he employed in his own business, SSG. We therefore conclude
that the district court did not clearly err in its factual findings
regarding the amount of intended loss.
Collins argues that the number of victims should be
limited to the number of people with whom he had dealings, rather
than all victims of the conspiracy. A victim is defined as “any
person who sustained part of the actual loss.” USSG § 2B1.1,
comment. n.1(A). Collins conceded that he was involved in JSP’s
advertising solicitation for the 30th Annual Peninsula Relays
programs — a solicitation for an event with which JSP had no
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association — and the district court found that this solicitation
alone supported the factual finding that the number of victims was
in excess of 250. At trial, the Government admitted into evidence
216 checks from businesses buying advertising in the fraudulent
“30th Annual Peninsula Relays” program, and an additional forty-
nine checks from businesses made out directly to Peninsula Relays,
for which no advertising was placed in the fraudulent programs. We
therefore conclude that the district court did not clearly err in
its calculation of the number of victims. The district court did
not err in the calculation of the advisory guideline range, and we
affirm Collins’ sentence, which incorporated a variance below that
range.
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.
Nos. 05-4342, 05-4447, 05-4448, 05-4449 AFFIRMED
No. 06-6156 DISMISSED
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