United States v. Michael Pavlock

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL J. PAVLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:10-cr-00007-IMK-JSK-1)
Submitted: July 31, 2012 Decided: September 20, 2012
Before SHEDD, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David M. Lynch, Wickliffe, Ohio, for Appellant. William J.
Ihlenfeld, II, United States Attorney, Andrew R. Cogar,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael J. Pavlock was convicted following a jury
trial of twelve counts of wire fraud, in violation of 18
U.S.C.A. § 1343 (West Supp. 2012), and three counts of making
false entries in a bankruptcy document, in violation of 18
U.S.C. § 1519 (2006). Pavlock was sentenced to 324 months in
prison. On appeal, he challenges the sufficiency of the
evidence supporting each count of conviction. For the reasons
stated below, we affirm.
We first address Pavlock’s multiple motions to proceed
pro se on appeal. A defendant has no constitutional right to
self-representation on appeal. Martinez v. Court of Appeal of
Cal., 528 U.S. 152, 163-64 (2000); United States v. Gillis, 773
F.2d 549, 560 (4th Cir. 1985). Furthermore, Pavlock delayed
considerably in informing this court of his desire to proceed
pro se, see 4th Cir. R. 46(f), and has not identified the issues
he seeks to pursue that have not been addressed by counsel.
Therefore, we deny Pavlock leave to proceed pro se.
Turning to Pavlock’s contention that the evidence was
insufficient to support any of his fifteen counts of conviction,
we conclude that the issues he seeks to raise on appeal are not
properly before us. When, as here, “a defendant raises specific
grounds in a [Fed. R. Crim. P.] 29 motion, grounds that are not
specifically raised are waived on appeal.” United States v.
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Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012); see also United
States v. Cooper, 654 F.3d 1104, 1117-18 (10th Cir. 2011).
Pavlock’s Fed. R. Crim. P. 29(c) motion before the
district court maintained only that the evidence was
insufficient as to a specific element of four of his twelve
counts of wire fraud. The district court denied the motion
without addressing the sufficiency of the evidence as to any of
the other counts. On appeal, however, Pavlock has abandoned the
arguments raised below and seeks to challenge the sufficiency of
the evidence through claims neither asserted nor considered in
the district court. Consequently, we find that he has waived
them on appeal. Chong Lam, 677 F.3d at 200.
Further, and notwithstanding this waiver, Pavlock has
failed to offer any credible reason to question the validity of
his convictions. Generally, we must “sustain a guilty verdict
that, viewing the evidence in the light most favorable to the
prosecution, is supported by substantial evidence.” United
States v. Osborne, 514 F.3d 377, 385 (4th Cir. 2008) (internal
quotation marks omitted). “[S]ubstantial evidence is evidence
that 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. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). We will “not review the credibility
of the witnesses and assume that the jury resolved all
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contradictions in the testimony in favor of the government.”
United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007); see
United States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010). A
defendant challenging the sufficiency of the evidence “bears a
heavy burden,” as reversal of a conviction for insufficient
evidence is limited to “the rare case where the prosecution’s
failure is clear.” Ashley, 606 F.3d at 138 (internal quotation
marks omitted).
All of Pavlock’s assertions on appeal either ignore
the theory of liability under which he was prosecuted, ask us to
improperly construe the evidence in the light most favorable to
him, or seek to have this court impermissibly reject credibility
determinations entrusted to the jury. Therefore, we affirm the
judgment below and deny Pavlock’s motions to relieve counsel and
proceed pro se. 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.
AFFIRMED
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