United States v. Keith Vinson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4384
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEITH ARTHUR VINSON,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:12-cr-00020-MR-DLH-5)
Argued: October 28, 2016 Decided: March 24, 2017
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Duncan joined.
ARGUED: John Clark Fischer, RANDOLPH AND FISCHER, Winston-Salem, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Jill Westmoreland
Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
KING, Circuit Judge:
In October 2013, Keith Arthur Vinson was convicted in the Western District of
North Carolina of various offenses arising from his leadership of schemes wherein fraud
was systematically utilized to keep his real estate empire afloat. Vinson has appealed,
contending primarily that the prosecution presented insufficient evidence of the crimes
alleged. He also maintains that the trial court gave the jury an erroneous and prejudicial
willful blindness instruction, and that his aggregate sentence of 216 months is
substantively unreasonable. As explained below, we reject each of his contentions and
affirm.
I.
A.
From approximately 2010 and culminating in this prosecution, the FBI, the IRS,
and the United States Attorney in western North Carolina conducted a protracted
investigation into the fraudulent activities discussed herein. Prior to the initial indictment
against Vinson, the government had already convicted several of his cohorts and obtained
their cooperation. Those men included George “Buddy” Greenwood, David G. Smith,
and Robert Craig Gourlay. For example, in February 2011, the grand jury in Asheville
indicted Greenwood for misapplication of bank funds and money laundering.
Greenwood pleaded guilty to those charges on June 16, 2011. In October 2011, the
United States Attorney filed an information charging Smith with a conspiracy to commit
2
various offenses and Gourlay with misapplication of bank funds and money laundering.
Smith and Gourlay pleaded guilty on November 1, 2011, to the charges against them.
Vinson was initially indicted by the grand jury in April 2012 on multiple federal
charges, including conspiracy, bank and wire fraud, and money laundering. In addition
to Vinson, that indictment charged Avery “Buck” Cashion III and his wife, Joan Cashion,
plus Raymond M. Chapman and Thomas E. Durham, Jr. A superseding indictment,
returned in early December 2012, lodged charges against Vinson, Buck Cashion,
Chapman, Durham, and two additional defendants, George M. Gabler and Aaron Ollis.
In January 2013, the charges in the initial indictment against Joan Cashion were
dismissed. Soon thereafter, in February 2013, the United States Attorney filed an
information charging Andrew Hager with conspiracy to commit offenses against the
United States. Hager pleaded guilty to that charge on March 11, 2013. On September
18, 2013, Buck Cashion and Chapman pleaded guilty to the conspiracy charges in the
superseding indictment. Less than a week later, on September 24, 2013, Gabler pleaded
guilty to an information charging misprision of a felony. Durham and Ollis also pleaded
guilty on that occasion, to conspiracy charges lodged in the superseding indictment.
Pursuant to agreements with the United States Attorney, those defendants cooperated in
the ongoing investigation and related prosecutions.
On October 1, 2013 — fifteen months after the initial indictment and only a week
after several of the defendants had pleaded guilty — the grand jury returned another
superseding indictment, the operative indictment in this appeal (the “Indictment”). The
Indictment named Vinson as the only defendant, but several of those who had pleaded
3
guilty were identified as unindicted coconspirators. The Indictment alleged thirteen
charges against Vinson, as follows:
• Count One — That Vinson conspired with Buck Cashion, Chapman,
Ollis, Hager, and others to commit bank fraud, in contravention of
18 U.S.C. § 1349;
• Count Two — That Vinson conspired with Cashion, Chapman,
Ollis, Hager, Greenwood, and others to commit offenses against and
to defraud the United States, in violation of 18 U.S.C. § 371;
• Counts Three, Four, Five, Six, and Ten — That Vinson, on five
occasions, aided and abetted the misapplication of bank funds, in
violation of 18 U.S.C. §§ 656 and 2;
• Counts Seven and Eight — That Vinson committed and aided and
abetted two wire fraud offenses affecting a bank, in violation of 18
U.S.C. §§ 1343 and 2;
• Count Nine — That Vinson conspired with Cashion, Chapman,
Ollis, Hager, Durham, Gourlay, Smith, and others to commit
offenses against and to defraud the United States, in contravention of
18 U.S.C. § 371;
• Count Eleven — That Vinson conspired with Cashion, Chapman,
and others to commit money laundering, in contravention of 18
U.S.C. § 1956(h); and
• Counts Twelve and Thirteen — That Vinson committed and aided
and abetted two money laundering offenses, in violation of 18
U.S.C. §§ 1957 and 2.
Vinson was the only alleged conspirator who elected to go to trial. Vinson’s jury
trial on the Indictment began in Asheville on October 7, 2013, just a week after the
Indictment was returned. Several of his cohorts testified for the prosecution, including
Buck Cashion, Gourlay, and Hager. The prosecution called at least twenty-six witnesses
— such as coconspirators, banking officials, and victims of the alleged criminal activities
— and introduced hundreds of documents.
4
B.
The trial evidence emphasized Vinson’s ongoing efforts to defraud various banks
and others in seeking to salvage his floundering real estate empire, particularly the Seven
Falls Golf and River Club in western North Carolina (the “Seven Falls development,” or
“Seven Falls”). 1 Vinson acted through various entities, including Seven Falls LLC, of
which he was the principal. In his efforts, Vinson utilized a dizzying array of fraudulent
activities, including those referred to herein as the Lot Loan Scheme, the Plastics Plant
Scheme, the Check Fraud Scheme, the Burnett Straw Loan, the Worlund Straw Loan, the
Zeiger Straw Loan, and the Queens Gap Scheme. Vinson’s fraudulent activities
contributed to the insolvency of two FDIC-insured banks in western North Carolina —
the Bank of Asheville (“BOA”) and Pisgah Community Bank (“PCB”) — leading the
FDIC to become the Receiver for each failed bank.
1. Background
Beginning in about 2006, Vinson implemented a plan to turn approximately 1,600
acres of North Carolina property into the Seven Falls development. Seven Falls was to
include luxury homes and condominiums near and around an Arnold Palmer
championship golf course outside Hendersonville. In about August 2006, Vinson sought
a $6 million land acquisition and development loan (an “A&D loan”) for Seven Falls
from the National Bank of South Carolina (“NBSC”). To consummate the A&D loan
1
Because we are reviewing the sufficiency of the proof of criminal offenses, we
recite the evidence in the light most favorable to the prosecution. See United States v.
Hassan, 742 F.3d 104, 115 (4th Cir. 2014).
5
transaction with NBSC, Vinson needed $2 million in seed money, which he did not have
on hand. Vinson thus sought assistance from his friend Buck Cashion, a real estate
investor and private money lender. Vinson and Cashion had previously been involved
together in other business deals, including two high-end housing developments located
near Asheville. Vinson advised Cashion, “I’ll make it very much worth your while if
you’ll borrow $2 million for me” for seed money on the NBSC A&D loan. See J.A.
967. 2 Cashion agreed to assist Vinson and promptly borrowed $2 million from BOA. In
return for Cashion’s help, Vinson promised to pay Cashion $4 million.
In January 2007, Vinson obtained additional funds from NBSC for use in the
Seven Falls development, increasing the A&D loan from $6 million to about $25 million.
Vinson used $4 million of the A&D loan to purchase a dairy farm adjacent to Seven Falls
that was to be used for an Arnold Palmer golf academy and another luxury housing
development. By the summer of 2007, road construction had commenced at Seven Falls.
Around that time, Vinson needed yet more money but ran up against NBSC’s loan limit
with respect to a single borrower — a restriction imposed under federal banking
regulations that constrain how much a particular bank can lend to one borrower. 3 To
2
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
3
The loans-to-one-borrower regulation provides that a “national bank’s or savings
association’s total outstanding loans and extensions of credit to one borrower may not
exceed 15 percent of the bank’s or savings association’s capital and surplus.” See 12
C.F.R. § 32.3. In order to apply, that regulation aggregates all loans made to a borrower
with other loans made to the borrower’s related businesses. Id. § 32.5(a).
6
raise additional funds for Seven Falls, Vinson asked Cashion to buy from Vinson the
recently acquired dairy farm, which had been appraised at $6.8 million.
In connection with the dairy farm transaction, Cashion used an entity called Zeus
Investments, LLC (“Zeus”) — which he owned with Chapman and Gabler — to borrow
$4 million from NBSC and consummate purchase of the farm. 4 Cashion and Zeus had no
intention of retaining the farm, however, and Cashion agreed with Vinson that Zeus
would simply hold it for thirty days. At that point, Cashion was anticipating the $4
million payment that Vinson had promised in return for Cashion’s assistance in obtaining
the $2 million in seed money on the NBSC A&D loan. The promised $4 million
payment from Vinson, however, was never made. 5
In June 2007, Vinson conducted a Founder’s Day promotion of Seven Falls at the
Biltmore Estate near Asheville. At that lavish event — which included an appearance by
Arnold Palmer himself — approximately 500 guests enjoyed alcohol under a “huge
festive tent” and witnessed the ribbon cutting for Palmer’s “fabulous golf academy.” See
J.A. 1071. The attendees also received discounts and special benefits for their purchases
4
Chapman, a real estate investor and private money lender, had previously
partnered with Cashion in several real estate ventures. According to the prosecutors,
Cashion was the “salesman” and Chapman was the “numbers guy”; together they loaned
money at high rates for risky financial ventures. See J.A. 79. Gabler was a CPA who
promoted Seven Falls to prospective investors. Chapman and Gabler invested substantial
sums of money in Seven Falls.
5
Between 2006 and 2009, Cashion secured approximately fifty loans on Vinson’s
behalf. Vinson failed to repay Cashion for more than $16 million of that debt, and
Cashion in turn failed to repay the various banks involved.
7
of Seven Falls lots, including 100% financing of lot purchases through NBSC. After the
event, Vinson hosted a Kenny G concert in Asheville. Although the funds Vinson raised
at the Founder’s Day event were to go toward repayment of the A&D loan from NBSC,
“[f]or some reason that money didn’t get taken out.” Id. at 999. Indeed, NBSC was
never repaid for the A&D loan.
By spring 2008, the lot sales at Seven Falls had dwindled due to winter weather
and the worsening economy. Vinson was thus unable to pay his employees and
contractors, and all work soon ceased on the Seven Falls infrastructure. In April 2008,
Vinson approached Cashion and asked for help paying “some lien people.” See J.A.
1007. By fall 2008, one of Vinson’s employees was “pretty much on the phone eight
hours a day with vendors trying to explain why their checks bounced,” as well as dealing
with vendors who demanded payment. Id. at 332.
2. The Lot Loan Scheme
In 2008, in order to satisfy financial obligations related to Seven Falls and
continue with its development, Vinson and his cohorts sought to raise large sums of
money by fraudulently obtaining additional loans on approximately twenty-five Seven
Falls lots (the “Lot Loan Scheme”). That scheme, which underlies the bank fraud
conspiracy offense charged in Count One of the Indictment, stemmed from Buck
Cashion’s failed attempt to obtain a $2.5 million A&D loan from PCB. 6 PCB was a
6
Count One charged a conspiracy under 18 U.S.C. § 1349 to commit bank fraud
in two respects: by defrauding a bank, in contravention of 18 U.S.C. § 1344(1), and by
obtaining bank funds by false and fraudulent pretenses, in violation of § 1344(2).
8
fairly new bank in Asheville, and Buck and Joan Cashion had invested in it. Buck
Cashion and Chapman approached Gourlay, PCB’s Chief Credit Officer, and Durham,
PCB’s President, seeking the $2.5 million A&D loan for Vinson. Gourlay explained that
PCB could not make a single loan for such a large sum, but suggested instead a scheme
that would utilize a series of fraudulent lot loans and thereby obtain $2.5 million to fund
the Seven Falls development. Cashion and Chapman relayed the proposed scheme to
Vinson.
As Cashion explained at trial, he informed Vinson that “we’re going to have to
circumvent the way the bank is doing it” and asked “do you want to do that?” See J.A.
1016. According to Cashion, Vinson promptly “said yes.” Id. Cashion explained that he
had “to have [Vinson’s] approval for the lot program because it’s his lots and it’s his lot
program.” Id.
After Gourlay provided the corrupt idea, Vinson, Cashion, Chapman, and others
structured and carried out the Lot Loan Scheme. Pursuant thereto, Vinson entered into
sales contracts with straw borrowers, who obtained loans from PCB and other banks to
purchase undeveloped Seven Falls lots, with the loan proceeds going to Vinson and his
creditors. Vinson hired Hager to find lenders that would make the loans. Among the
straw borrowers were Cashion, Chapman, Gabler, and Hager himself, plus Kostas
Rantzos and Nicholas Dimitris. 7
7
Several of the straw borrowers, including witnesses Rantzos and Dimitris,
corroborated how the loan transactions in the Lot Loan Scheme were handled and the
terms thereof. Although Rantzos was not prosecuted, the United States Attorney charged
(Continued)
9
The straw borrowers represented themselves to the lenders as bona fide
purchasers. Nevertheless, under side agreements between Vinson and the straw
borrowers, Vinson was allowed to continue marketing the Seven Falls lots to other buyers
and to repurchase the lots at any time. Meanwhile, the straw borrowers understood that
Vinson would repurchase the lots within two years if no other buyers emerged. Vinson
also agreed to make the straw borrowers’ loan payments for two years, as well as to pay
kickbacks directly to the straw borrowers by way of monthly payments in sums equal to
1% to 2% of their loan balances.
The side agreements in the Lot Loan Scheme included attractive “seller
concessions” for the straw borrowers, constituting 25% of the sales price of a given
Seven Falls lot. The straw borrower then obtained a loan equal to 75% of the sales price,
provided no funds for a down payment at the property closing, and nevertheless received
credit for a 25% down payment. The loan committee of the lender bank was thereby
misled into concluding that the loan-to-value (the “LTV”) ratio on the lot loan transaction
was 25:75, the minimum acceptable ratio without special approval. 8 The seller
Dimitris by information with a conspiracy offense. Dimitris pleaded guilty, was
sentenced to prison, and cooperated with the prosecutors.
8
An LTV ratio is the ratio “between the amount of a mortgage loan and the value
of the property pledged as security for the mortgage,” which lenders consider before
approving a loan or mortgage. See Loan-to-Value Ratio, Black’s Law Dictionary (10th
ed. 2014).
10
concessions were intentionally omitted from several appraisal documents and HUD-1
settlement statements. 9
The Lot Loan Scheme involved “shopping” the loans to various lenders without
disclosing that the borrowers were obtaining additional loans elsewhere. The closings
were timed in quick succession so that the borrowers could obtain loans at different banks
without the lenders learning of the other transactions. The borrowers thereby concealed
substantial new liabilities that the lenders would have taken into account in assessing the
borrowers’ ability to repay the loans. Emails from Hager to Vinson confirm that Vinson
was fully informed when his various accomplices moved loan applications from bank to
bank and substituted the names of borrowers to suit their purposes. The schemers also
withheld information from the lenders that would have caused the loans to be aggregated
with other Seven Falls lot loans in applying the lenders’ loans-to-one-borrower limits.
Between April and July 2008, Vinson and his cohorts closed the loans that were
part and parcel of the Lot Loan Scheme, including loans from PCB, BOA, Old Town
Bank, Community Bank of Rowan, Southern Community Bank and Trust, and Branch
Banking and Trust. At trial, Old Town Bank officials explained that they would not have
approved any loans on Seven Falls lots had they been aware of the seller concessions,
Vinson’s various commitments to pay loan costs, and other undisclosed promises made
by Vinson, such as repurchases of the lots within two years.
9
A HUD-1 settlement statement is a standard government-approved form used to
itemize fees and services that a lender charges a borrower closing a loan to purchase or
refinance real estate. See 12 U.S.C. § 2603(a).
11
Although PCB’s Gourlay understood that the lot loans made by PCB as part of the
Lot Loan Scheme were a proxy for the $2.5 million A&D loan that PCB had to deny, the
PCB loan committee was unaware of the actual purpose of the lot loans and the complete
terms of the transactions. For example, Kerry Friedman, a member of PCB’s board of
directors and its loan committee, confirmed that the board “had no idea that there were
relationships . . . with [Vinson] in connection with the loans [they] were approving.” See
J.A. 1715-19.
The former loan officer who handled BOA’s lot loans, Samuel “Eric” Morris, was
disturbed to find that initial straw borrowers did not bring their 25% down payments on
the lot purchases to the loan closings, because he knew that the BOA loan committee had
predicated its loan approvals on their promises to do so. Morris relayed his concerns to
Greenwood, the President of BOA, who instructed Morris to nevertheless close the loans.
In July 2008, Morris handled additional straw borrower loans for Seven Falls lots.
Despite having been assured that those borrowers would be paying their 25% down
payments, Morris learned that the seller concessions had again been granted. As a result,
Morris advised the borrowers that BOA would not close the lot loans. Greenwood,
however, overruled Morris and instructed him to close them. Although the BOA loan
committee approved the Seven Falls lot loans, the committee members were never made
aware of the fact that the loans were made to straw borrowers for Vinson’s benefit. 10
10
In October 2008, Greenwood had to complete a questionnaire on BOA’s behalf
for the banking regulators. When requested to identify all extensions of credit for the
(Continued)
12
To maximize the available loan proceeds, Vinson and his cohorts hired real estate
appraisers — often conspirator Ollis — who provided inflated appraisals of the Seven
Falls lots. The false appraisals usually compared other Seven Falls lots, which also had
exaggerated values, to justify their valuations. Additionally, the appraisals
mischaracterized Seven Falls’ level of completed construction, concealed the seller
concessions, and failed to disclose the fact that the Lot Loan Scheme transactions were
not being made at arms-length. Oftentimes, the inflated appraisals conflicted with lower
values reflected elsewhere, such as on deeds and in property tax records. In an email to
Vinson on February 19, 2009, Ollis warned that the failure to properly document the
higher, inflated land values “creates a problem as far as any records are concerned.” See
J.A. 6830. Vinson replied, “Good advice.” Id.
Vinson personally attended many of the closings in the Lot Loan Scheme, and,
pursuant thereto, raised about $10 million for his use on the Seven Falls development.
As Cashion testified:
Everybody worked for [Vinson,] not necessarily directly or indirectly, but
everybody came to him . . . . So everything we were doing to get money
had to go through him on a daily basis and it did. . . . [O]n every single
transaction, I called and talked to [Vinson] about it.
See J.A. 1203.
benefit of persons not identified on the pertinent notes — which included the various Lot
Loan Scheme-related notes — Greenwood falsely wrote “none.” See J.A. 7744.
13
3. The Plastics Plant Scheme
By August 2008, Vinson and Buck Cashion had each exceeded BOA’s loans-to-
one-borrower limit. In order to obtain additional funding for the struggling Seven Falls
development, Vinson sought to sell — to a straw purchaser — a closed plastics plant that
he owned near Seven Falls (the “Plastics Plant Scheme”). The Indictment alleges two
offenses relating to the Plastics Plant Scheme, the Count Two conspiracy 11 and the Count
Three misapplication of bank funds offense.
Vinson, Buck Cashion, Chapman, and BOA’s Greenwood schemed to obtain
funds for Seven Falls by arranging for the straw sale of the plastics plant to Joan Cashion
and Chapman. Greenwood knew that Vinson, Chapman, and Buck Cashion had invested
in Seven Falls, but Greenwood concealed that fact from the BOA loan committee to
subvert the bank’s loans-to-one-borrower limit. Instead of using the loan funds from the
straw sale for the stated purpose of short-term investment in Seven Falls, the proceeds of
BOA’s loan were instead used to pay off outstanding Seven Falls-related loans, to the
benefit of Vinson. On August 18, 2008, the plastics plant loan was closed by BOA,
carrying out the Plastics Plant Scheme and securing a $1.7 million haul for Vinson.
11
Count Two charged a conspiracy under 18 U.S.C. § 371 to defraud the United
States and thereby impair the functions of the FDIC, as well as to commit offenses
against the United States. Those offenses included making a false entry in a bank record,
in contravention of 18 U.S.C. § 1005; misapplication of bank funds, in violation of 18
U.S.C. § 656; wire fraud affecting a bank, in contravention of 18 U.S.C. § 1343; and
bank fraud, in violation of 18 U.S.C. § 1344. The Count Two conspiracy involved not
only the Plastics Plant Scheme, but also the Check Fraud Scheme, the Burnett Straw
Loan, and the Queens Gap Scheme.
14
4. The Check Fraud Scheme
Simultaneous with the foregoing events, Vinson was engaged in a scheme that
involved bouncing and kiting checks to various banks, thereby obtaining by fraud
substantial sums of money (the “Check Fraud Scheme”). 12 The Check Fraud Scheme
was the subject of three charges in the Indictment, i.e., the Count Two conspiracy and the
misapplication of bank funds offenses charged in Counts Four and Five.
On August 18, 2008, Vinson wrote a $400,000 check to Zeus, drawn on a Seven
Falls account in Vinson’s name at BOA. When the Zeus check was written, however, the
balance in the Seven Falls account was around $100,000, as Vinson then knew. Instead
of holding or rejecting the $400,000 check, BOA’s Greenwood directed a bank employee
to honor it, contributing to an overdraw of Vinson’s Seven Falls account by about
$308,000. Greenwood, however, only had authority to approve insufficient funds checks
of $50,000 or less. Almost four months later, on December 31, 2008, Greenwood again
exceeded his authority at BOA and approved a loan to Vinson of $308,000 to cover the
shortfall in his account. 13 That loan to Vinson was belatedly presented to BOA’s loan
12
Check kiting is generally described as “[t]he illegal practice of writing a check
against a bank account with insufficient funds to cover the check, in the hope that the
funds from a previously deposited check will reach the account before the bank debits the
amount of the outstanding check.” See Check-Kiting, Black’s Law Dictionary (10th ed.
2014).
13
John Hamrick, BOA’s Chief Credit Officer, confirmed that Greenwood, as
BOA’s President, possessed the authority to approve a secured loan of up to $300,000
and an unsecured loan of up to $150,000. Any loan exceeding Greenwood’s authority
required prior approval of the loan committee. Because the $308,000 loan to Vinson was
made without prior committee approval, it was an unauthorized loan.
15
committee in early January 2009. Faced with the fact that the end-of-year books of BOA
would otherwise reflect either a $308,000 loss or unauthorized loan, the committee
approved the loan to Vinson. Steve Cogburn, the loan committee chair, acknowledged
that, by the time Greenwood secured the committee’s approval, BOA’s money had been
lost and would never be repaid.
Vinson also obtained funds from other banks by check kiting and using fraudulent
checks. On December 9, 2009, Vinson had his wife sign a check on her credit union
account, which then had a balance of only $151. Vinson lacked signing authority for the
credit union account, which his wife used for personal expenses only. Soon after
receiving the signed blank check, Vinson made it payable to Seven Falls LLC in the sum
of $95,632.52. Vinson promptly deposited that check to cover an overdrafted Seven Falls
account at BOA that had a negative balance of $95,631.52.
Three days later, on December 12, 2009, Vinson wrote a $500,000 check on an
account at the First Bank of Avon that contained a balance of only $4,102.27. Vinson
deposited the Bank of Avon check into a BOA account he shared with his wife. When
BOA received the $500,000 bad check, a subordinate asked Greenwood whether he was
“seriously going to . . . deposit it and accept it.” See J.A. 1439. Greenwood laughingly
replied in the affirmative, saying that there “was probably about a 20 percent chance it
might be good.” Id. Vinson promptly used the $500,000 for his own benefit. For
example, he deposited $95,000 into a Seven Falls account and $113,000 into a Cashion
account, both at BOA. Vinson also used $206,000 to make overdue payments to BOA on
Seven Falls-related loans.
16
After ascertaining that Greenwood and BOA had given Vinson immediate credit
for his fraudulent $500,000 Bank of Avon check, BOA’s Hamrick sensed trouble and
prepared a list of BOA loans that were secured by lots at Seven Falls. That list revealed
that BOA had made more than $14 million in Seven Falls loans that were then
outstanding, well over the bank’s loans-to-one-borrower limit with respect to Vinson.
Vinson’s $500,000 fraudulent check was bounced by the Bank of Avon, and BOA was
obliged to report that check and the various straw borrower lot loans to the regulating
agencies. That report caused BOA’s rating by the banking regulators to plummet.
5. Other Straw Loans
On top of using several straw borrowers to carry out the Lot Loan Scheme, Vinson
solicited the assistance of other straw borrowers to obtain additional loan funds. Those
other straw borrowers included Charles Burnett, Edward Worlund, and Betty Zeiger.
a. The Burnett Straw Loan
In March 2009, Hager met with Burnett, who specialized in obtaining funding in
situations where banks would no longer lend to a commercial enterprise. During that
meeting, Vinson called and asked Burnett to act as the straw borrower on a $500,000 loan
from BOA for the benefit of Vinson (the “Burnett Straw Loan”). The Burnett Straw
Loan served as underpinning for four offenses charged in the Indictment — the Count
17
Two conspiracy, the Count Six misapplication of bank funds offense, the Count Eleven
money laundering conspiracy, 14 and the Count Twelve money laundering offense.
As collateral for the Burnett straw loan, Vinson provided a lot in Seven Falls. To
assist with the scheme, Ollis prepared a fraudulent appraisal of the lot, making it appear
that Burnett was borrowing no more than 75% of the value of the collateral, thereby
satisfying the 25:75 LTV ratio. Ollis appraised Burnett’s lot at $853,000, but the loan
was to be for only $500,000. In exchange for Burnett’s services, Vinson paid Burnett a
kickback of $40,000. Burnett and Vinson also agreed that, if Vinson failed to repay the
loan within sixty days, Burnett would be entitled to $10,000 per month for up to four
months.
When Hager approached BOA loan officer Morris about the Burnett Straw Loan,
Morris said that BOA had had its “fill of Seven Falls lot loans” and that Morris was “not
going to look at it.” See J.A. 940. Accordingly, Morris recommended that BOA reject
Burnett’s loan request. Greenwood initially agreed with Morris that it was “probably
best” to reject the loan, but nevertheless then approved it. Id. at 931. Although
Greenwood knew the fraudulent nature of the Burnett Straw Loan, the chief credit officer
of BOA and its loan committee were never made aware of the loan’s fraudulent aspects.
14
Count Eleven charged a conspiracy under 18 U.S.C. § 1956(h) to launder
proceeds from offenses alleged earlier in the Indictment, in contravention of 18 U.S.C.
§ 1957(a). In proving the money laundering conspiracy, the prosecution focused on
proceeds from the Count Six misapplication of bank funds offense involving the Burnett
Straw Loan, as well as the Count Eight wire fraud offense relating to the Queens Gap
Scheme.
18
The BOA credit memorandum for the loan failed to indicate that Vinson was the party
responsible for repaying it, did not reveal that Burnett had received a $40,000 kickback,
and falsely asserted that the loan would be used for short-term working capital for Seven
Falls, which would cover day-to-day expenses. The loan’s intended use was actually to
cover past-due loan payments for Seven Falls. Additionally, the HUD-1 settlement
statement for the Burnett Straw Loan failed to disclose the actual loan terms and the
kickback to Burnett.
b. The Worlund Straw Loan
In July 2008, Hager recruited Worlund, a Cashion business associate, to obtain a
$650,000 loan from PCB for the benefit of Vinson (the “Worlund Straw Loan”). 15 The
Worlund Straw Loan provided support for the Count Nine conspiracy 16 and the Count
Ten misapplication of bank funds offense. The loan was to provide Vinson funding for
an escrow account with a firm called AML & Associates, in an effort to secure AML’s
investment of $60 million in Seven Falls. A man named Dowling agreed that Vinson and
his cohorts could use Dowling’s annuity, valued at more than $900,000, as collateral for
15
Although Zeus — rather than Worlund — was the intended borrower on the
Worlund Straw Loan, PCB was unable to loan money to Zeus because its owners
(Cashion, Chapman, and Gabler) already had loans with PCB that exceeded the bank’s
loans-to-one-borrower limit.
16
Count Nine charged a conspiracy under 18 U.S.C. § 371 to defraud the United
States by impairing the functions of the FDIC, as well as to commit offenses against the
United States, including misapplication of bank funds and bank fraud, in contravention of
18 U.S.C. §§ 656 and 1344. The Count Nine conspiracy involved the Worlund Straw
Loan and the Zeiger Straw Loan.
19
the Worlund Straw Loan. In exchange for using Dowling’s annuity, Vinson agreed to
pay Dowling a $35,000 kickback and have Cashion assign Dowling the right to receive
$6,500 monthly for ten years. The loan documentation falsely reflected that the loan
would be used for short-term financing for Seven Falls, and information concerning other
material facts and the $35,000 kickback were not revealed to PCB’s loan committee.
c. The Zeiger Straw Loan
On February 25, 2009, Cashion’s mother, Betty Zeiger, served as the straw
borrower on a $50,000 loan from PCB (the “Zeiger Straw Loan”). The Zeiger Straw
Loan provided underpinning for the conspiracy offense charged in Count Nine of the
indictment. Cashion asked Gourlay if Zeiger could “borrow $50,000 to help [Vinson]
with the payroll.” See J.A. 1135. When the loan closed, Zeiger immediately endorsed
the $50,000 loan proceeds check over to Vinson for his use at Seven Falls, and Vinson
thanked Zeiger for her help. Gourlay confirmed at trial that the Zeiger Straw Loan was
intended to help get Seven Falls past another short-term need. Indeed, the loan was
always intended solely for Vinson and the Seven Falls payroll. PCB’s loan committee
had been falsely assured, however, that the purpose of the loan was to provide Zeiger
with funds for a real estate investment. The loan committee was not informed that
Vinson would be repaying the loan and that it actually benefitted him.
6. The Queens Gap Scheme
In early 2009, Vinson first met developer Devin McCarthy, who owned an under-
construction 3,500-acre residential and golf course development in western North
Carolina known as Queens Gap. McCarthy intended to sell Queens Gap and was willing
20
to be paid from the proceeds of future lot sales. In exchange, however, a buyer had to
agree to complete the Queens Gap project. Vinson advised that he was willing to help
McCarthy complete Queens Gap in exchange for an ownership interest therein (the
“Queens Gap Scheme”). That scheme was the subject of five charges in the Indictment
— the Count Two conspiracy, the wire fraud offenses charged in Counts Seven and
Eight, the Count Eleven money laundering conspiracy, and the Count Thirteen money
laundering offense.
Pursuant to the Queens Gap Scheme, McCarthy agreed to sell Queens Gap to
Vinson and give him control over Queens Gap improvements, in exchange for a
percentage on future lot sales. They also agreed that McCarthy would maintain control
over all funds spent on the Queens Gap project and that such funds were to “be used for
constructing infrastructure improvements to Phase I” at Queens Gap. See J.A. 6838.
Their Queens Gap agreement required that all projects be approved by the parties’
engineer before any funds could be used. It also specified that Vinson and McCarthy
would be “joint signors on that account concurrently.” Id.
On May 20, 2009, Vinson and McCarthy opened a joint Queens Gap account at
BOA that required both their signatures for all disbursements. McCarthy deposited $4.25
million into the Queens Gap account, with the restriction that the funds could only be
used for the Queens Gap infrastructure. According to McCarthy, BOA’s Greenwood
“and his staff understood how much money was coming into his bank and everybody was
crystal clear on the protocol and how to handle it.” See J.A. 1946. Greenwood knew that
both signatures were required on each Queens Gap check, and that all checks and related
21
invoices had to be presented to McCarthy for signature. Vinson and McCarthy each
signed the Queens Gap agreement and the Queens Gap account’s dual signature card.
On July 2, 2009 — contrary to the Queens Gap agreement — Vinson executed a
new signature card on the Queens Gap account at BOA that solely required Vinson’s
signature. Vinson also signed a resolution, approved by Greenwood, removing McCarthy
as a signatory on the account. Two months later, in September 2009, McCarthy grew
suspicious because he was unable to access the Queens Gap account and he had not
received any invoices or checks. Furthermore, Greenwood had refused to discuss with
McCarthy his lack of access to the Queens Gap account. When McCarthy tried to speak
with Vinson about the millions of dollars he thought were in the account, Vinson
answered with “gobbledygook.” See J.A. 1962.
In November 2009, Vinson reassured McCarthy that his money was yet in the
Queens Gap account, and Vinson actually wrote McCarthy a $2.5 million check that was
drawn thereon. The check bounced, however, and McCarthy then discovered that —
without his knowledge or approval — Vinson had withdrawn nearly all of the $4.25
million from the Queens Gap account, leaving a balance of only $79.
Four months earlier, on July 2, 2009, Vinson had transferred $2 million out of the
Queens Gap account to a personal account he shared with his wife. From there, Vinson
wired $1,368,000 to an account at Wachovia Bank and $144,600 to another Wachovia
account, all for Seven Falls rather than Queens Gap. In fact, Vinson used the $4.25
million from the Queens Gap account to either pay Seven Falls’ expenses or make
deposits into Seven Falls-related accounts. Several Seven Falls and Queens Gap loans
22
then defaulted, resulting in heavy losses for lenders and various contractors and
employees involved in those projects.
C.
On October 16, 2013, the prosecution rested its case against Vinson, a week and a
half after the trial proceedings had begun. Vinson then sought judgments of acquittal
from the trial court on each of the charges in the Indictment, pursuant to Rule 29 of the
Federal Rules of Criminal Procedure.
Vinson essentially made three arguments in support of his Rule 29 motion. First,
he contended that there was simply no evidence that he had ever lied to or deceived any
banks, or that he had any role in any lies or deceptions directed towards them. Second,
Vinson maintained that there was insufficient evidence to show that he was a “knowing
member of any conspiracy with the goal of defrauding the United States or any federally
insured institution.” See J.A. 2100. Third, Vinson emphasized that he never believed he
was doing anything wrong. The trial court, however, summarily denied Vinson’s
acquittal motion. Vinson then chose to rest the defense without testifying or presenting
evidence.
During the district court’s charge conference, Vinson focused on the prosecution’s
proposed willful blindness instruction, objecting to it being given and arguing that it was
neither appropriate nor justified. The trial court, however, ruled against Vinson and
agreed to give the jury the proposed willful blindness instruction. In pertinent part, that
instruction advised the jury:
23
With regard to “knowledge,” a defendant may not deliberately close his
eyes to that which would otherwise be obvious. Such deliberate ignorance
is also known as “willful blindness.” If you find that [Vinson] was
willfully blind as to the existence or purpose(s) of the conspiracy, then you
may find that he had knowledge of the conspiracy.
See J.A. 2175.38.
Without objection, the trial court carefully explained to the jury the various
elements of the offenses that were being tried. In sum, the court instructed that the
following findings were necessary to convict Vinson.
• Count One: That an agreement was knowingly formed between two
or more persons to commit bank fraud, by either knowingly and
intentionally defrauding a bank or obtaining bank funds by false and
fraudulent pretenses; and that, at some time during the existence of
the conspiracy, Vinson had knowledge of the conspiracy’s essential
objectives and with that knowledge deliberately and voluntarily
joined the conspiracy with the intent to further its unlawful purpose.
• Counts Two and Nine: That an agreement was knowingly formed
between two or more persons to commit offenses against and to
defraud the United States; that, at some time during the existence of
the conspiracy, Vinson had knowledge of the conspiracy’s essential
objectives and with that knowledge deliberately joined the
conspiracy with the intent to further its unlawful purpose; and that,
also during the existence of the conspiracy, one of its members
performed an overt act in order to further the conspiracy’s unlawful
purpose.
• Counts Three, Four, Five, Six, and Ten: That an officer or employee
of a covered bank willfully misapplied the funds of the bank with the
intent to defraud or inflict financial injury to the bank, and that
Vinson knowingly and voluntarily participated in the criminal
venture as something that he wished to bring about and committed
an act intended to make the criminal venture succeed.
• Counts Seven and Eight: That Vinson knowingly devised a scheme
to defraud with the intent to defraud; that, in furthering the scheme,
Vinson caused the transmission of a writing, signal, picture, or sound
24
by means of a wire communication in interstate commerce; and that
the scheme affected a covered bank. 17
• Count Eleven: That an agreement was knowingly formed between
two or more persons to commit money laundering, and that, at some
time during the existence of the conspiracy, Vinson had knowledge
of the conspiracy’s essential objectives and with that knowledge
deliberately and voluntarily joined the conspiracy with the intent to
further its unlawful purpose.
• Counts Twelve and Thirteen: That Vinson knowingly engaged or
attempted to engage in a monetary transaction in the United States
involving property with a value greater than $10,000 that was
derived from specified criminal activity, or that Vinson knowingly
and intentionally aided and abetted the commission of that act.
On October 17, 2013, the jury returned verdicts of guilty on all thirteen counts of
the Indictment. With respect to the substantive offenses charged in Counts Three through
Eight and Ten through Thirteen, as well as the Count Eleven conspiracy offense, the jury
returned general verdicts, choosing guilty as charged and rejecting the not guilty
alternative. On the conspiracy offenses charged in Counts One, Two, and Nine, the jury
was not only presented with the guilty or not guilty inquiry but was also asked to respond
to a series of inquiries concerning the objects of the conspiracies.
As to Count One, the jury found that each of the objects of the bank fraud
conspiracy involving the Lot Loan Scheme had been proven, that is, defrauding a bank
under 18 U.S.C. § 1344(1) and obtaining bank funds by false and fraudulent pretenses
under § 1344(2). The jury also found each of the objects of the Count Two conspiracy to
17
Although Vinson was charged in Counts Seven and Eight with committing and
aiding and abetting wire fraud offenses affecting a bank, the trial court did not instruct the
jury on an aiding and abetting theory of those offenses.
25
be proven (involving the Plastics Plant Scheme, the Check Fraud Scheme, the Burnett
Straw Loan, and the Queens Gap Scheme). And, on the Count Nine conspiracy, the jury
again found each of the objects proven (involving the Worlund Straw Loan and the
Zeiger Straw Loan).
In post-trial proceedings, Vinson renewed his motion for judgments of acquittal,
reiterating his previously asserted positions on the thirteen charges in the Indictment and
contending that the evidence was insufficient to show that he had committed any of the
offenses alleged. The district court denied Vinson’s renewed motion by Memorandum of
Decision and Order of January 31, 2014. See United States v. Vinson, No. 1:12-cr-00020
(W.D.N.C. Jan. 31, 2014), ECF No. 311. After engaging in a detailed charge-by-charge
assessment, the court concluded that there was “substantial evidence to support findings
of guilt for each and every count in the Indictment.” Id. at 18.
D.
Vinson’s sentencing hearing was conducted on June 25, 2015. On that occasion,
the district court fixed Vinson’s advisory Sentencing Guidelines range as 262 to 327
months of imprisonment, based on a total offense level of 39 and a criminal history
category of I. Vinson argued for a sentence of thirty-six months, maintaining that there
was no “significant distinction” between himself and Buck Cashion or Chapman, who
had each been sentenced to thirty-six months. See J.A. 2245. In turn, the prosecution
supported a within-Guidelines sentence, arguing that Vinson was “in a substantially
different posture than his [coconspirators].” Id. at 2247.
26
The district court agreed with the prosecutors that Vinson was more culpable than
any of his cohorts. 18 The court nevertheless granted Vinson a downward variance
because, although his crimes were “extremely complex,” the applicable Guidelines
contemplated more extensive fraudulent conduct than that in which Vinson had engaged.
See J.A. 2319-20. The court sentenced Vinson to nine concurrent sentences of 216
months on the offenses in Counts One, Three, Four, Five, Six, Seven, Eight, Ten, and
Eleven; two concurrent sentences of sixty months on Counts Two and Nine; and two
concurrent sentences of 120 months on Counts Twelve and Thirteen. The sentences were
all ordered to run concurrently with each other, so that Vinson received an aggregate
sentence of 216 months. 19
Vinson timely noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
18
On May 11, 2012, Greenwood was sentenced to forty-eight months in prison.
After Vinson’s trial, Greenwood’s sentence was reduced to forty-two months. On
November 26, 2013, Gourlay, who had testified against Vinson, was sentenced to fifteen
months. That same day, Smith was sentenced to nine months. On August 14, 2014,
Hager, who had also testified against Vinson, was sentenced to eight months. On June 2,
2015, Cashion, who had also testified, was sentenced to thirty-six months. That same
day, Chapman was sentenced to thirty-six months, Durham to thirty months, and Ollis
and Gabler to two years of probation.
19
In addition to imposing the prison sentence, the district court ordered Vinson to
make more than $18 million in restitution to several banks that were victims of his
fraudulent activities and to the FDIC as Receiver for the two failed banks. Specifically,
the court awarded restitution to the FDIC of more than $1 million for losses related to
PCB and more than $5.5 million for losses related to BOA.
27
II.
On appeal, Vinson pursues three contentions of error: that the evidence was
insufficient to support his convictions of the charged offenses; that the trial court erred in
giving the willful blindness instruction to the jury; and that his 216-month sentence is
substantively unreasonable. We assess those contentions in turn.
A.
Vinson first contends that the prosecution presented insufficient evidence to
support a guilty verdict on any charge in the Indictment. We review de novo such an
evidence insufficiency challenge, viewing the evidence and all reasonable inferences to
be drawn therefrom in favor of the prosecution. See United States v. Barefoot, 754 F.3d
226, 233 (4th Cir. 2014). We are obliged to sustain a guilty verdict if any rational
factfinder could have found the offense to be proven beyond a reasonable doubt. Id.
Challenging the sufficiency of trial evidence presents a heavy burden for an appellant, as
“[r]eversal for insufficient evidence is reserved for the rare case where the prosecution’s
failure is clear.” See United States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010).
1.
Count One charged Vinson with a bank fraud conspiracy in connection with the
Lot Loan Scheme, in contravention of 18 U.S.C. § 1349. As the trial court instructed the
jury, such a conspiracy offense has two elements: (1) that two or more persons agreed to
commit bank fraud; and (2) that at some time during the conspiracy, the defendant had
knowledge of the criminal objective of the agreement and willfully joined the conspiracy
with the intent to further its unlawful purpose. See United States v. Chittenden, 848 F.3d
28
188, ___ (4th Cir. 2017). The jury found Vinson guilty and identified two objects of the
conspiracy under 18 U.S.C. § 1344, i.e., defrauding a bank and obtaining bank funds by
false and fraudulent pretenses.
On appeal, Vinson argues that a judgment of acquittal should have been awarded
on Count One for failure to prove even the first element of a bank fraud conspiracy, i.e.,
for lack of “proof of an agreement to intentionally misrepresent or purposely conceal.”
See Br. of Appellant 27. In support of that argument, Vinson asserts that “all the efforts
to sell lots and secure financing for Seven Falls were patently obvious, well-documented
by the pertinent banking records and known by all the bank officers who made
independent business decisions to approve loans.” Id. According to Vinson, the loans
made as part of the Lot Loan Scheme “turned out to be extremely poor business
decisions,” but those decisions were made only after “all the essential terms of the sales
were fully disclosed.” Id. at 27, 30. Vinson specifically points to BOA and PCB as
lenders whose officers — namely Greenwood, Gourlay, and Durham — possessed full
knowledge of the terms of the Lot Loan Scheme’s sales contracts.
Notwithstanding Vinson’s protestations that the terms of the lot sales were always
transparent, the evidence plainly showed otherwise. Vinson and his cohorts failed to
disclose to the lenders material terms of lot loan transactions, including the following:
that the loans were being obtained by straw borrowers for Vinson’s benefit; that, pursuant
to side agreements between Vinson and the straw borrowers, Vinson promised to
repurchase the lots, to make the straw borrowers’ loan payments for two years, to pay
them monthly kickbacks, and to give them “seller concessions” covering their down
29
payments; that the borrowers were simultaneously obtaining loans on additional lots from
other banks; and that fraudulently inflated appraisals were being used. The evidence
established that, if those terms had been disclosed, the banks’ respective loan committees
(including the committees at BOA and PCB) would not have approved the loans. That
Greenwood, Gourlay, and Durham were aware of all the loan terms is not a valid defense
for Vinson on the bank fraud conspiracy charge, in that such bank officers were part and
parcel of the conspiracy to both defraud the banks and obtain bank funds by false and
fraudulent pretenses.
Furthermore, there was ample evidence that Vinson knew the criminal objective of
the bank fraud conspiracy and willfully joined that conspiracy with the intent to further
its unlawful purpose. For example, Vinson gave Buck Cashion the go-ahead for the Lot
Loan Scheme as a way to circumvent PCB’s loans-to-one-borrower limit, entered the side
agreements with the straw borrowers and paid them kickbacks, was kept apprised by
Hager as the conspirators moved loan applications from bank to bank and substituted the
names of borrowers to suit their purposes, conferred with Ollis about false appraisals, and
personally attended many of the lot loan closings. Indeed, Vinson was not only consulted
“on every single transaction,” see J.A. 1203, but he was also the primary beneficiary of
the conspiracy, amassing about $10 million for his use on the Seven Falls development.
In these circumstances, the evidence was wholly sufficient to convict Vinson of the
Count One conspiracy offense.
30
2.
Counts Two and Nine of the Indictment charged Vinson with separate
conspiracies to commit offenses against and to defraud the United States, in violation of
18 U.S.C. § 371. In order to prove a § 371 conspiracy, the prosecution must show the
following: (1) an unlawful agreement between two or more people to commit a crime;
(2) that the defendant “knowingly and willingly participated in that conspiratorial
endeavor”; and (3) an overt act committed in furtherance of the conspiracy. See United
States v. Singh, 518 F.3d 236, 252 (4th Cir. 2008). Here, the trial court instructed the jury
on those very elements, as well as the alleged objects of the conspiracies.
a.
The alleged objects of the Count Two conspiracy offense — involving the BOA-
related Plastics Plant Scheme, Check Fraud Scheme, Burnett Straw Loan, and Queens
Gap Scheme — included fraud impairing the functions of the FDIC, plus the offenses of
making false entries in bank records under 18 U.S.C. § 1005, misapplication of bank
funds under 18 U.S.C. § 656, wire fraud affecting a bank under 18 U.S.C. § 1343, and
bank fraud under 18 U.S.C. § 1344. In deeming Vinson guilty on Count Two, the jury
found against him on each alleged object of the conspiracy offense, but needed to find
only one. Because we conclude that the evidence was sufficient to sustain Vinson’s
conviction as to several objects, we do not review the evidence as to all of them.
With respect to the Plastics Plant Scheme, Vinson contends that the evidence
“only showed an arm’s length transaction freely entered into by all participants” for the
express purpose, as stated in the pertinent BOA credit memorandum, of “short-term-
31
investment in Seven Falls.” See Br. of Appellant 32-33 (internal quotation marks
omitted). Viewed in the proper light, however, the evidence established that Vinson
utilized straw borrowers to obtain the plastics plant loan from BOA and circumvent its
loans-to-one-borrower limit. Vinson pledged the plastics plant property as collateral for
the loan and then used the proceeds to pay off outstanding Seven Falls-related loans,
rather than for the stated purpose of providing short-term capital for Seven Falls. The
fraudulent nature of the Plastics Plant Scheme was known by BOA’s Greenwood, who
participated therein, but was concealed from the BOA loan committee. The evidence
thus supports the proposition that Vinson conspired with Greenwood and others to
commit the offenses of misapplication of bank funds and bank fraud, as defined for the
jury by the trial court in its instructions.
Similarly — and contrary to Vinson’s protestations of another “entirely normal
and utterly transparent” loan transaction, see Br. of Appellant 35 — the evidence showed
that material terms of the Burnett Straw Loan were known by Greenwood but concealed
from the BOA loan committee. Those terms included that Burnett was a straw borrower
seeking the loan for Vinson’s benefit; that Vinson paid Burnett a $40,000 kickback and
promised him $10,000 a month for up to four months if the loan was not repaid within
sixty days; that the Seven Falls lot being used as collateral for the loan was falsely
appraised to make it appear that Burnett was borrowing no more than 75% of the lot’s
value; and that the loan proceeds were to be used to cover past-due loan payments for
Seven Falls, rather than for the stated purpose of short-term working capital to cover
Seven Falls’ day-to-day expenses. Accordingly, the evidence was sufficient to prove that
32
Vinson again conspired with Greenwood and others to commit the offenses of
misapplication of bank funds and bank fraud, as charged in Count Two.
b.
The alleged objects of the Count Nine conspiracy offense — involving the
Worlund and Zeiger Straw Loans made by PCB — were fraud impairing the functions of
the FDIC, misapplication of bank funds, and bank fraud. The jury not only found Vinson
guilty on Count Nine, but found against him as to each alleged object of the conspiracy
offense. On appeal, Vinson insists that there was nothing fraudulent about the Worlund
and Zeiger Straw Loans. Critically, Vinson ignores evidence that PCB’s Gourlay was
aware of material terms of the Worlund Straw Loan that were not revealed to the PCB
loan committee, including that Hager recruited Worlund to obtain the loan to circumvent
PCB’s loans-to-one-borrower limit, that Vinson agreed to pay for use of another man’s
annuity as collateral for the loan, and that the loan documentation falsely reflected the
loan would be used for short-term financing for Seven Falls. Vinson also disregards
evidence that the PCB loan committee was not informed that the Zeiger Straw Loan was
to be used to cover the Seven Falls payroll and was to be repaid by Vinson. That
evidence showed, in support of Count Nine, that Vinson conspired with Gourlay and
others to commit the offense of misapplication of bank funds and bank fraud.
3.
Counts Three through Six, as well as Count Ten, charged Vinson with aiding and
abetting the misapplication of bank funds, in contravention of 18 U.S.C. §§ 656 and 2.
As the trial court instructed the jury, a § 656 offense occurs when an officer or employee
33
of a covered bank willfully misapplies the funds of the bank and does so “with the intent
to injure or defraud the bank.” See United States v. Duncan, 598 F.2d 839, 858 (4th Cir.
1979). Vinson was prosecuted under § 2, the aiding and abetting statute, which provides
that “[w]hoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission is punishable as a principal.” The
government therefore had to prove that Vinson had aided and abetted the commission of
the offense of the misapplication of bank funds by committing an act in furtherance of
that offense with the intent to facilitate its commission. See Rosemond v. United States,
134 S. Ct. 1240, 1243 (2014).
a.
Four separate counts had BOA’s Greenwood as a principal and Vinson as an aider
and abettor — specifically, Count Three (involving the Plastics Plant Scheme), Counts
Four and Five (relating to the Check Fraud Scheme), and Count Six (concerning the
Burnett Straw Loan). Echoing arguments made with respect to the Count Two
conspiracy offense, Vinson insists that the transactions underlying the Plastics Plant
Scheme and the Burnett Straw Loan were conducted at arms-length and with full
disclosures. Thus, Vinson contends, there simply was no misapplication of bank funds.
Additionally, on the premise that he had only “casual contacts” with Greenwood, Vinson
suggests that he cannot have been Greenwood’s aider and abettor or acted with the
requisite criminal intent. See Br. of Appellant 39.
The evidence was sufficient to establish, however, that Greenwood misapplied
bank funds when he pushed through the Plastics Plant Scheme-related loan and the
34
Burnett Straw Loan without disclosing material terms of those loans to the BOA loan
committee, including that the loans were for Vinson’s benefit but were being made to
straw borrowers in order to circumvent the bank’s loans-to-one-borrower limit, and that
Vinson was responsible for repaying the loans. See United States v. Luke, 701 F.2d 1104,
1107 (4th Cir. 1983) (concluding that the misapplication of bank funds occurs where
“loans [are] made to named individuals who, with the knowledge of bank officials, pass[]
on the proceeds to third parties,” and where the bank officials do “not intend to look to
[the named borrower] for repayment”). The evidence was also sufficient to prove that
Vinson committed acts in furtherance of the Count Three and Six offenses with the intent
to facilitate Greenwood’s commission of those offenses by, inter alia, providing the
plastics plant property and a Seven Falls lot as collateral for the straw loans. Notably,
that very evidence proved the misapplications of bank funds involving the Plastics Plant
Scheme and the Burnett Straw Loan as objects of the Count Two conspiracy. See United
States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (“The same evidence establishing a
defendant’s participation in a conspiracy may support a conclusion that a defendant
participated in the principal’s unlawful intent to [commit an offense], thereby proving
guilt of aiding and abetting as well.”).
Turning to the Check Fraud Scheme, Counts Four and Five charged Vinson with
aiding and abetting the misapplication of bank funds in relation to Greenwood’s initial
approval of the $400,000 bad check that Vinson wrote to Zeus in August 2008, followed
by Greenwood’s approval of a $308,000 loan in December 2008 to cover the resulting
deficit in Vinson’s Sevens Falls account. Vinson maintains that the BOA loan
35
committee’s retroactive authorization of the $308,000 loan in January 2009 — more than
four months after the $400,000 bad check was approved — demonstrates that no
misapplication of bank funds occurred.
Under the evidence, the jury was entitled to find that Greenwood misapplied bank
funds when he approved the $400,000 bad check, because his authority was limited to
approving insufficient funds checks of $50,000 or less. The jury was also entitled to find
that Greenwood again misapplied bank funds by approving the $308,000 loan to cover
the deficit in the Seven Falls account, in that Greenwood was not authorized to
unilaterally approve a loan of that amount. Furthermore, the evidence was sufficient to
prove that Vinson committed acts in furtherance of the Count Four and Five offenses by
writing the $400,000 check on an account with grossly insufficient funds and by signing
the loan agreement to rectify the resulting deficiency. The jury was also entitled to infer
Vinson’s criminal intent from the trial evidence, which demonstrated that he and
Greenwood regularly colluded — directly and through intermediaries — to fraudulently
obtain and misuse BOA funds to cover Vinson’s ever-burgeoning debts.
The BOA loan committee’s retroactive authorization of the $308,000 loan simply
does not obviate the misapplication of funds offenses that had already occurred. See
Duncan, 598 F.2d at 858 (“[I]t is sufficient that the defendant . . . temporarily deprive[d]
the bank of the possession, control or use of its funds.”). In any event, the evidence
reflected that the BOA loan committee did not intend to ratify Greenwood’s unauthorized
decision to improperly transfer funds to Vinson. Rather, the loan committee — expecting
there would never be a repayment from Vinson —approved the loan to avoid the entry of
36
an end-of-year record of a $308,000 loss or unauthorized loan. In these circumstances,
the jury was entitled to conclude that Vinson aided and abetted Greenwood in
misapplying BOA funds, as alleged in Counts Four and Five.
b.
Count Ten, involving the Worlund Straw Loan, had PCB’s Gourlay as a principal
and Vinson as an aider and abettor. Invoking his arguments at to the Count Nine
conspiracy offense, Vinson maintains that “[t]here being no fraud, there can also be no
misapplication of bank funds.” See Br. of Appellant 52. According to Vinson, although
“in hindsight, this loan may well have been a foolish business decision by the bank, the
bank at all times had the ability, to quote Nancy Reagan, to ‘just say no.’” Id. To the
contrary, the evidence was sufficient to prove that Gourlay misapplied bank funds by
concealing material loan terms from the PCB loan committee to gain its approval of the
Worlund Straw Loan. Gourlay withheld from the loan committee, inter alia, that the loan
was being made to a straw borrower for Vinson’s benefit to circumvent the bank’s loans-
to-one-borrower limit, and that Vinson was responsible for repaying the loan.
Meanwhile, Vinson was shown to have committed acts in furtherance of the Count Ten
offense with the intent to facilitate Gourlay’s commission of that offense by, e.g.,
agreeing to pay a third party for use of his annuity as collateral for the loan. That is, the
evidence was sufficient to establish that Vinson aided and abetted the misapplication of
bank funds.
37
4.
Relevant to the Queens Gap Scheme, Counts Seven and Eight of the Indictment
charged Vinson with, in relevant part, committing two wire fraud offenses affecting a
bank, in violation of 18 U.S.C. § 1343. Generally, as included in the trial court’s jury
instructions, the essential elements of wire fraud “are (1) the existence of a scheme to
defraud and (2) the use of a wire communication in furtherance of the scheme.” See
United States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012) (alteration and internal
quotation marks omitted). To prove a scheme to defraud, the prosecution must establish
that the defendant acted with the specific intent to defraud. See United States v. Wynn,
684 F.3d 473, 478 (4th Cir. 2012).
Count Seven involved the wire transfer of $1,368,000 on July 2, 2009, from
Vinson’s personal account at BOA to a Wachovia Bank account for the benefit of Seven
Falls, using funds from the joint Queens Gap account at BOA. Count Eight concerned
the wire transfer of $144,600, on that same date, of funds from Vinson’s personal BOA
account to another Wachovia account, again for the benefit of Seven Falls. Those funds
also originated from the Queens Gap account. Vinson contends that he cannot be guilty
of wire fraud for either transaction because the funds involved belonged to him when
they were transferred. See Br. of Appellant 40 (“[B]oth disputed transfers were of funds
legally belonging to [Vinson], and thus cannot form the basis for a criminal wire fraud.”).
Vinson acknowledges that he changed the Queens Gap account to require only one
signature, but claims that he did so with the approval of BOA “in the normal course of
business.” Id. at 42. Vinson further maintains that the Queens Gap account was not
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really a joint account, but was the property of Queen’s Gap Acquisitions, LLC, which
Vinson owned. As a result, according to Vinson, the two wire transfers with respect to
Counts Seven and Eight were “routine” and not criminal acts. Id. Additionally, Vinson
argues that any disagreement over who owned the funds is a civil dispute that is simply a
garden variety breach of contract claim relating to the Queens Gap development.
The evidence was sufficient to establish, however, that Vinson was not the sole
owner of the Queens Gap account and could access the funds in the account only if he
met certain conditions. That is, the funds could not be withdrawn without the signatures
of both Vinson and McCarthy, and only then to pay for infrastructure construction at
Queens Gap approved by the parties’ engineer. Under the evidence, Vinson unilaterally
and fraudulently replaced the Queens Gap account’s dual signature card with one that
required only his signature and signed a resolution, approved by BOA’s Greenwood,
removing McCarthy as a signatory on the account. Within six months of the Queens Gap
account being opened, Vinson had drained nearly all the $4.25 million that McCarthy had
deposited into the account. Viewing that evidence in the light most favorable to the
prosecution, the jury was entitled to find that Vinson participated in and carried out a
scheme to defraud by the unauthorized use of Queens Gap funds for his own benefit and
for Seven Falls-related obligations. The jury could also readily find that the July 2, 2009
wire transfers of large sums of money to the Wachovia accounts were made in
furtherance of that scheme, as charged in Counts Seven and Eight.
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5.
Finally, Count Eleven charged Vinson with a conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h), while Counts Twelve and Thirteen
charged him with committing and aiding and abetting money laundering, in contravention
of 18 U.S.C. §§ 1957 and 2. The trial court instructed that, in order to obtain a conviction
for money laundering under § 1957, the prosecution must prove that the defendant
knowingly engaged or attempted to engage in a monetary transaction in the United States
involving property with a value greater than $10,000 that was derived from specified
criminal activity. See United States v. Cherry, 330 F.3d 658, 668 (4th Cir. 2003). The
court further instructed that, to prove a money laundering conspiracy under § 1956(h), the
prosecution must establish that an agreement was knowingly formed between two or
more persons to commit money laundering, and that, at some time during the existence of
the conspiracy, the defendant had knowledge of the conspiracy’s essential objectives and
with that knowledge deliberately and voluntarily joined the conspiracy with the intent to
further its unlawful purpose. See Singh, 518 F.3d at 248.
For the Count Twelve money laundering offense, the specified criminal activity
was the Count Six misapplication of bank funds offense involving the Burnett Straw
Loan, and the monetary transaction was Vinson’s payment of the $40,000 kickback to
Burnett. For Count Thirteen, the specified criminal activity was the Count Eight wire
fraud offense relating to the Queens Gap Scheme, and the monetary transaction was
Vinson’s transfer of $144,600 to one of the Wachovia accounts. The prosecution’s
theory of the Count Eleven money laundering conspiracy offense, in turn, was that
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Vinson conspired with others to commit the Count Twelve and Thirteen offenses. In
contesting those convictions on appeal, Vinson simply repeats his attacks on the
prosecution’s proof as to Counts Six and Eight, arguing that because there was no
criminal activity with respect to the Burnett Straw Loan and the Queens Gap Scheme,
there could be no money laundering or conspiracy to commit money laundering. Because
we have determined that Vinson’s convictions on Counts Six and Eight were supported
by substantial evidence, however, we are provided with no valid basis for deeming the
evidence insufficient on Counts Eleven through Thirteen. In sum, then, we conclude that
the prosecution presented adequate proof of each of the thirteen charges lodged against
Vinson in the Indictment.
B.
Next, Vinson maintains that the trial court erred by instructing the jury on willful
blindness. We review a court’s decision to offer a willful blindness instruction for abuse
of discretion. See United States v. Jinwright, 683 F.3d 471, 478 (4th Cir. 2012). Under
the willful blindness doctrine, the government may “prove knowledge by establishing
that the defendant deliberately shielded himself from clear evidence of critical facts that
are strongly suggested by the circumstances.” Id. at 478-79 (alterations and internal
quotation marks omitted). As we have explained, “[a] willful blindness instruction is
appropriate when the defendant asserts a lack of guilty knowledge but the evidence
supports an inference of deliberate ignorance.” See United States v. Abbas, 74 F.3d 506,
513 (4th Cir. 1996). Furthermore, where the trial evidence “supports both actual
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knowledge on the part of the defendant and deliberate ignorance, a willful blindness
instruction is proper.” Id.
Each of the charges lodged against Vinson in the Indictment required a finding
that he acted knowingly. Throughout these proceedings, Vinson has insisted that there
was a dearth of evidence that he either knew of or “deliberately turned a blind eye to any
illegal banking activity.” See Br. of Appellant 59. We disagree. First of all, there was
ample evidence that Vinson knowingly and intentionally engaged in fraudulent activities
— including evidence that Vinson himself paid kickbacks to straw borrowers, signed
contracts and closing documents that misrepresented the purpose and material terms of
loan transactions, and engaged in a pattern of writing checks for thousands (and even
hundreds of thousands) more dollars than were in the relevant bank accounts. Indeed,
email and other communications with his cohorts corroborated Vinson’s guilty
knowledge.
Moreover, the government presented evidence of deliberate ignorance. For
example, there was evidence that Vinson requested the assistance of others to obtain bank
funding Vinson needed but knew he could not obtain on his own, and that Vinson’s
coconspirators then kept him abreast of details of their various schemes, even though
Vinson did not always respond to their communications. As the government asserts, that
evidence suggests, “at a minimum,” that Vinson “deliberately failed to ask questions that
might have incriminated him.” See Br. of Appellee 69. Thus, the trial court acted well
within its discretion in charging the jury on willful blindness.
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C.
Finally, Vinson contends that his below-Guidelines sentence of 216 months in
prison is substantively unreasonable. We review the substantive reasonableness of a
sentencing decision for abuse of discretion. See United States v. Howard, 773 F.3d 519,
527-28 (4th Cir. 2014). In so doing, we are obliged to “apply a presumption of
reasonableness to a sentence within or below a properly calculated guidelines range.”
See United States v. Weon, 722 F.3d 583, 590 (4th Cir. 2013). That “presumption can
only be rebutted by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” See United States v. Louthian, 756 F.3d 295, 306 (4th Cir.
2014).
Characterizing his sentence as “draconian,” Vinson asserts that the 216-month
term “results in the sort of unfair disparity between co-defendants that 18 U.S.C.
§ 3553(a)(6) rightly condemns and unfairly elevates [his] role in Seven Falls beyond
others whose responsibility is arguably far greater and certainly no less.” See Br. of
Appellant 60-61. At bottom, Vinson relies on his cohorts’ lower sentences to argue the
unreasonableness of his own sentence. But, as we have recognized, “comparing the
sentences of defendants who helped the Government to those of defendants who did not
. . . is comparing apples and oranges.” See United States v. Perez-Pena, 453 F.3d 236,
243 (4th Cir. 2006). Each one of Vinson’s comparators admitted to criminal
responsibility and many of them cooperated with the prosecutors. On the other hand,
Vinson failed to accept responsibility for his crimes, made a lengthy allocution to the
court at the sentencing hearing where he continued to deny his guilt, and has never
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expressed remorse for his criminal activities. Moreover, the sentencing court concluded
that Vinson’s sentence should reflect that he was the “hub of the wheel” who “had a
greater connection to more of the . . . criminal activity” than any of his coconspirators.
See J.A. 2317. In these circumstances, the presumption of reasonableness applies, and
Vinson’s sentence must stand.
III.
Pursuant to the foregoing, we are satisfied to reject Vinson’s contentions of error
and affirm his convictions and sentence.
AFFIRMED
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