United States v. Spivey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4144
ALVIN RALPH SPIVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-98-199)
Submitted: March 31, 2000
Decided: May 3, 2000
Before LUTTIG and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER,
L.L.P., High Point, North Carolina, for Appellant. Walter C. Holton,
Jr., United States Attorney, Harry L. Hobgood, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Alvin Ralph Spivey of two counts of mail fraud
in connection with a scheme to obtain promotional merchandise from
Philip Morris using counterfeit Marlboro uniform product code
("UPC") labels, in violation of 18 U.S.C.§ 1341 (West Supp. 1999),
and 18 U.S.C. § 2 (1994). The court sentenced Spivey to thirty-one
months' imprisonment to be followed by three years of supervised
release. The court also ordered Spivey to pay restitution to Philip
Morris in the amount of $103,722. Spivey appeals his convictions and
the district court's restitution order. Finding no reversible error, we
affirm.
I.
Spivey first challenges the district court's unanimity instruction
with regard to the elements of the offense, the underlying conduct,
and whether he acted as a principal or aider and abettor. He urges this
court to extend the Supreme Court's holding in Richardson v. United
States, 119 S. Ct. 1707, 1709 (1999), to his mail fraud convictions
under § 1341. Because Spivey did not object to the instructions at
trial, he concedes that this Court's review is limited to review for
plain error. See United States v. Brown, 202 F.3d 691, 698 & n.13
(4th Cir. 2000); see also United States v. Olano , 507 U.S. 725, 732-
37 (1993).
Specifically, Spivey contends that the unanimity charge was insuf-
ficient as to the elements of the offense, given the multiple allegations
of mail fraud in the indictment. In reviewing a court's jury instruc-
tions, we must examine "whether the jury charge, construed as a
whole, adequately stat[ed] the controlling legal principle without mis-
leading or confusing the jury." See Chaudhry v. Gallerizzo, 174 F.3d
394, 408 (4th Cir.), cert. denied, 120 S. Ct. 215 (1999) (citation omit-
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ted). Taken as a whole, we find no plain error in the district court's
instructions.
Spivey next contends, relying on Richardson, that the jury must
agree on the conduct that supports the mail fraud charges in the
indictment. Because of the number of acts alleged in the indictment,
Spivey asserts that the jury may not have agreed unanimously on the
underlying conduct. Even assuming that the failure to give a more
specific unanimity instruction was error, the error was not plain given
that no court has extended the reasoning in Richardson to violations
of § 1341. See Olano, 507 U.S. at 734 (defining "plain" as "synony-
mous with ``clear' or, equivalently, ``obvious'").
Finally, Spivey argues that the jury instructions on unanimity made
it impossible to determine whether the jury convicted him as a princi-
pal or as an aider and abettor. This argument, however, is foreclosed
by our decision in United States v. Horton, 921 F.2d 540, 545-46 (4th
Cir. 1990) (holding that defendant's right to unanimous verdict not
violated by instructions permitting jury to convict defendant as princi-
pal or aider and abettor). We therefore find no plain error in this
regard.
II.
Next, Spivey challenges his convictions for mail fraud on the
ground that the district court erred by denying his motion for judg-
ment of acquittal under Fed. R. Crim. P. 29. We review the district
court's decision to deny a motion for judgment of acquittal de novo.
See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998) (cita-
tions omitted), cert. denied, 525 U.S. 1141 (1999). Where, as here,
the motion is based on insufficient evidence, the relevant question is
not whether the court is convinced of guilt beyond a reasonable doubt,
but rather whether the evidence, when viewed in the light most favor-
able to the government, was sufficient for a rational trier of fact to
have found the essential elements of the crime beyond a reasonable
doubt. See United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996) (en banc); Glasser, 315 U.S. at 80. If substantial evidence
exists to support a verdict, the verdict must be sustained. See Glasser,
315 U.S. at 80.
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We have reviewed the trial testimony and conclude that the evi-
dence was sufficient. Spivey created the printing plates and printed
the counterfeit UPC labels to exchange for Marlboro merchandise.
Winford Bingham, who met Spivey at Spivey's place of employment
on several occasions, recruited people to provide their addresses in
exchange for retaining one of the items obtained with the counterfeit
UPC codes. Finally, Philip Morris intercepted 125 orders mailed to
the promotional program using the counterfeit labels. See United
States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997) (discussing ele-
ments of mail fraud); see also United States v. Wilson, 135 F.3d 291,
305 (4th Cir.) (discussing elements of aiding and abetting), cert.
denied, 523 U.S. 1143 (1998).
While Spivey challenges the government's use of circumstantial
evidence, it is well established that we may not review the credibility
of witnesses or weigh the evidence. See United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997). Here, the jury was given the opportu-
nity to hear the government's evidence and Spivey's recitation of the
facts. The jury's apparent refusal to believe Spivey's version of the
facts was within its province and its guilty verdicts were supported by
the evidence. When viewed in the light most favorable to the govern-
ment, the evidence was sufficient to convict him of mail fraud. See
Burgos, 94 F.3d at 862.
III.
Spivey also challenges the district court's imposition of restitution
in the amount of $103,722. Because Spivey did not object at sentenc-
ing, our review is only for plain error. See United States v. Karam,
201 F.3d 320, 330 (4th Cir. 2000).
Contrary to Spivey's assertion that the government did not estab-
lish that Philip Morris' loss was directly caused by his conduct, it is
clear from the record that Spivey's skills as a master printer were crit-
ical to the success of the scheme to obtain merchandise with counter-
feit UPC codes. We therefore find that the district court did not err--
let alone plainly err--in ordering Spivey to pay $103,722 in restitu-
tion.
Spivey also claims that the district court should have applied the
provisions of the Victim and Witness Protection Act of 1982
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("VWPA") in fashioning the restitution order because the mailings
charged in the indictment occurred in 1995--before the April 24,
1996, effective date of the Mandatory Victim Restitution Act of 1996
("MVRA"). Because the district court accepted the probation officer's
recommendation to order the full amount of restitution, Spivey claims
that application of the MVRA violated the Ex Post Facto Clause.
Although the mailings to which Spivey refers occurred in Septem-
ber 1995, the indictment also alleged that Spivey's criminal conduct
included conduct that continued beyond the effective date of the
MVRA. Specifically, Spivey printed counterfeit UPC codes in
December 1996. In addition, about one-third of the 125 confiscated
orders were mailed to Philip Morris after April 24, 1996. Finally,
Spivey was convicted in October 1998 and sentenced in February
1999. See Karam, 201 F.3d at 330 n.12. On these facts, we conclude
that there was no ex post facto violation and therefore no plain error
in the application of the MVRA.
IV.
Accordingly, we affirm Spivey's convictions and sentence. We dis-
pense 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.
AFFIRMED
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