US v. Robin Snyder, No. 08-4963 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4963 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBIN NEIL SNYDER; MORTGAGE BANKERS, LTD., Defendants - Appellants. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00155-CCB-1) Submitted: January 22, 2010 Decided: February 18, 2010 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan A. Gladstone, Annapolis, Maryland, for Appellant Robin Neil Snyder. Rod J. Rosenstein, United States Attorney, Martin J. Clarke, Michael J. Leotta, Assistant United States Attorneys, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robin Neil Snyder and Mortgage Bankers, Ltd., appeal the convictions on thirteen counts of wire fraud and aiding and abetting such fraud, in violation of 18 U.S.C.A. §§ 1343, 2 (West 2000 & Supp. 2009), one count of money laundering and aiding and abetting such conduct, in violation of 18 U.S.C. §§ 1956(a)(1), 2 (2006), and one count of obstruction of justice and aiding and abetting such conduct, in violation of 18 U.S.C. §§ 1512(c)(2), 2 (2006). Snyder claims the district court erred in joining Counts Eighteen and Nineteen with the other counts and not granting his motion to sever. He further claims the court abused its discretion in denying his motion for a new trial and the court clearly erred in determining for sentencing purposes the amount of actual and intended loss. Finding no error, we affirm. Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in the same indictment when the offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. This court reviews de novo the district court s refusal to grant a misjoinder motion to determine whether the initial joinder of the offenses was proper under Rule 8(a). United States v. Mackins, 315 F.3d 399, 412 2 (4th Cir. 2003). If joinder was proper, review of the denial of a motion to sever is for abuse of discretion under Fed. R. Crim. P. 14. Id. If joinder was improper, the court review[s] this nonconstitutional error for harmlessness, and reverse[s] unless the misjoinder resulted in no actual prejudice to the defendants because it had [no] substantial and injurious effect or influence in determining the jury s verdict. F.3d at 412 Mackins, 315 (quoting United States v. Lane, 474 U.S. 438, 449 (1986) (first and second alteration added)). Because testimony, of impaneling judicial resources, *5 involving prospect additional joinder is of jurors the duplicating witness or limited rule wasting rather than the United States v. Hawkins, 589 F.3d 694, __, 2009 WL exception. 4906678, the the (4th Cir. same 2009). statute Joinder is of multiple unremarkable . charges 2009 Id., WL 4906678, *7 (citing United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (courts routinely allow joinder of bank robbery charges against the same defendant)). Joinder on unrelated charges, however, raises the prospect that the Defendant may be convicted based upon considerations other than the facts of the charged offense. We Id., 2009 WL 4906678, *5. find no error in Nineteen with the other counts. similar character as the joining Counts Eighteen and Count Eighteen was of a same or other 3 wire fraud charges. Count Nineteen was part of the same transaction as Count Eighteen. See United States v. Carmichael, 685 F.2d 903, 910 (4th Cir. 1982). Snyder failed to show he was clearly prejudiced as a result of joining the charges and not granting his motion to sever. The district court may grant a motion for a new trial based on newly discovered evidence if: (a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989). This court has never allowed a new trial unless all five factors are established. United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). We review the denial of a motion for a new trial newly based discretion. 2006). on discovered evidence for abuse of United States v. Smith, 451 F.3d 209, 216 (4th Cir. We find no clear error with respect to the district court s finding that the newly discovered evidence was primarily for impeachment purposes, not typically a basis for a motion for a new trial, and that the evidence did not support a finding that had it been presented at produced an acquittal. 4 trial it would have probably The Sentencing Guidelines provide that the amount of loss for purposes of sentencing enhancements is the greater of the actual Guidelines loss or § 2B1.1 the cmt. intended n.3(A) loss. (2008). U.S. In this Sentencing instance, Snyder s base offense level was increased by fourteen because it was found that the amount of intended and actual loss was in excess of $400,000. See USSG § 2B1.1(b)(1)(H). The amount of loss is a factual determination reviewed for clear error. (4th Cir. 1997). United States v. Loayza, 107 F.3d 257, 265 A sentencing court makes a reasonable estimate of the loss, given the available information. United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003) (internal quotation marks omitted); see USSG § 2B1.1, cmt. n.3(C). A sentencing enhancement need only be supported by a preponderance of the evidence. Miller, 316 F.3d at 503. Actual loss is the value of the property taken by the Defendant from the victims. See Loayza, 107 F.3d at 265. Intended loss is defined as the pecuniary harm that was intended to result from the offense . . . and . . . includes intended pecuniary harm that would have been impossible or unlikely to occur[.] n.3(A)(ii). USSG § 2B1.1, cmt. The intended loss amount may be used to determine sentencing, 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. 5 We find no error with respect to the district court s findings regarding actual or intended loss. Both figures were supported by a preponderance of the evidence. Accordingly, we affirm the convictions and sentence. 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 6

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