US v. Laurinda Holohan, No. 08-4583 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4583 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAURINDA HOLOHAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:07-cr-00117-BR-4) Submitted: May 31, 2011 Decided: June 22, 2011 Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jason H. Cowley, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Laurinda Holohan appeals her conviction and seventysix month sentence on one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 (2006) and twelve counts of mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341, 2 (2006). She argues that the district court erred in denying her motion to sever her trial from that of her codefendants and that conviction. insufficient evidence supports her We affirm. This case arises out of a Ponzi scheme spanning more than twenty states and involving millions of dollars of loss. The indictment naming Holohan also charged six co-defendants: Michael A. Lomas, Knight, Scott B. Michael L. Hollenbeck, Young, and Barry Arthur C. J. Maloney, Susan Anderson. * The government alleged that Lomas and Young were the principals of a company that would ultimately become known as Mobile Billboards of America ( MBA ). work in an Hollenbeck investors. Lomas and Young hired Holohan and Knight to administrative and Anderson capacity to serve for MBA, and as salesmen, they hired recruiting Maloney, MBA s corporate attorney, was alleged to * In United States v. Lomas, 392 Fed.Appx. 122, 2010 WL 3034086 (4th Cir. 2010), we affirmed the judgment of sentence (240 months) entered against Lomas based on his guilty plea and upheld a restitution award in excess of $45 million. 2 have assisted in implementing the legal documents associated with the defendants scheme. the scheme pled guilty, While many of the participants in Holohan, Hollenbeck and Maloney proceeded to trial. Briefly, the government s theory of the case was that MBA used its for frames salespeople the to display recruit of investors advertisements installed on the sides of truck trailers. leased to MBA. return monthly billboard who that purchased would be The frames were then The investors were promised a certain fixed (a space lease on the payment) frames generated for by selling advertising use. the The investors were further promised that their investments would be guaranteed and insured, investments were sound. and they were assured that the Unbeknownst to the investors, MBA was unable to generate advertising revenue sufficient to cover the monthly lease payments, and was using investment capital to fund those payments. In addition, Lomas was embezzling significant sums for personal purchases. Prior to trial, the defendants moved to sever their trials, disparity claiming of prejudicial. that their admissible antagonistic evidence defenses against The court denied the motions. and the each would be At the nearly five- week jury trial, the government adduced evidence from victims of the alleged scheme, investigators, 3 regulators, attorneys and financial service providers who did business with MBA, and from members of the alleged conspiracy, including Lomas, who had pled guilty and were cooperating with the government. At the conclusion of the trial, Maloney was acquitted and Holohan and Hollenbeck were convicted of each count of the indictment that remained after the government moved to dismiss several of the substantive mail fraud charges. month sentence for her role Holohan received a seventy-six in the scheme, and this appeal followed. I. Motion to Sever Holohan first argues that the court erred in denying her motion to sever her trial from that of her co-defendants. Holohan specifically argues that under the well-known standards of Zafiro v. United States, 506 U.S. 534 (1993), severance was required because, as she claims to have projected in her pretrial motion, she suffered substantial prejudice in the joint trial with Hollenbeck and Maloney. motion to sever for abuse of We review the denial of a discretion. United States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003). There is a preference in the federal system for joint trials of defendants who are indicted together, and a district court should grant a severance only if there is a serious risk that a joint trial would compromise a specific right of one of 4 the defendants, or prevent the jury judgment about guilt or innocence. The presumption that defendants from making a reliable Zafiro, 506 U.S. at 537-38. indicted together should tried together is especially strong in conspiracy cases. States v. Chorman, 910 F.2d 102, 114 (4th Cir. 1990). be United Mutually antagonistic defenses alone are insufficient to merit severance. United States v. Najjar, 300 F.3d 466, 474 (4th Cir. 2002). Instead, there must be such a stark contrast presented by the defenses that the jury is presented with the proposition that to believe the core of one defense it must disbelieve the core of the other, or the conflict will lead to the jury s unjustified inference of both defendants guilt. Id. This standard is not satisfied here. Holohan argues that as a result of the denial of her motion she was denied a fair trial (and thus, she says, due process). This contention rests on her assertion that certain inflammatory victim testimony, including testimony describing how Hollenbeck, the salesman, targeted churchgoing retirees as victims of the fraudulent scheme, was irrelevant to her guilt or innocence and thus would not have been admitted against her had she been tried alone. This argument is without merit. Evidence of how the scheme was operated, including the manner of selecting potential victims, was clearly admissible against all of the alleged members of the overall scheme to 5 defraud. had Holohan fully enjoyed the assistance of counsel and every opportunity to object to assertedly irrelevant evidence and to cross-examine each of the witnesses called by the government victims of the or her co-defendants. scheme, for example, She interaction with her or knew her. was whether able ask had any they to In particular, counsel for Holohan was also able to cross-examine Lomas (who testified in favor of the government) and Maloney (who testified on his own behalf) and attempt to show that they were the culpable parties, not her. any Notably, Holohan does not assign as error on appeal distinct ruling on the admissibility of evidence; furthermore, while she complains generally about the absence of limiting instructions, she has not suggested that she actually sought any limiting instructions from the district court or that the court specifically denied any such requests. In sum, we discern no support in the record for the assertion that Holohan was denied a fair trial by virtue of the district court s denial of her motion to sever. Separately, Holohan claims that the jury s guilty verdict cannot be deemed reliable because of the enormous and inflammatory amount of evidence presented at this complex trial against Hollenbeck. the jury was Maloney s acquittal belies this claim, as obviously able to culpability of the defendants. distinguish the relative In addition, it is well-settled 6 that the mere fact that Holohan s acquittal might have been more likely if she were tried warrant a severance. alone is simply not sufficient to See United States v. Strickland, 248 F.3d 368, 384 (4th Cir. 2001). Accordingly, we reject the claim that the district court abused its discretion in denying the motion to sever. II. Sufficiency of the Evidence Holohan next argues that the evidence adduced at trial was insufficient to sustain her conviction. This court reviews challenges to the sufficiency of the evidence supporting a jury verdict de novo. United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007). A defendant challenging the sufficiency of the evidence faces a heavy burden. 507 F.3d 233, 245 United States v. Foster, (4th Cir. 2007). This court reviews a sufficiency of the evidence challenge by determining whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). both direct and circumstantial evidence, and United We review accord the government all reasonable inferences from the facts shown to those sought to be established. F.3d 326, 333 (4th Cir. 2008). United States v. Harvey, 532 In reviewing for sufficiency of 7 the evidence, we do not review the credibility of the witnesses, and we assume that the jury resolved all contradictions in the testimony in favor of the government. Kelly, 510 F.3d at 440. This verdict court will uphold the jury s if substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. Foster, 507 F.3d at 244- 45. The elements of mail fraud are: (1) the existence of a scheme to defraud, and (2) the use of mails to perpetrate the scheme. United (4th Cir. 2001). States v. 266 Vinyard, F.3d 320, 326 To establish the first element, the government had to prove that Holohan acted with the specific intent to defraud, which circumstances United States may and v. be need inferred not Godwin, be 272 from proven F.3d the by 659, totality direct 666 of the evidence. (4th Cir. 2001) (internal quotation marks and citations omitted). (In addition, the government proceeded on an aiding and abetting theory.) To find [Holohan] guilty of conspiracy to commit mail fraud, the jury had to find an agreement [to commit mail fraud], willing participation by [Holohan], and an overt act in furtherance of the agreement. United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999) (citing United States v. Dozie, 27 F.3d 95, 97 (4th Cir. 1994)). 8 Holohan argues that the government did not adduce sufficient evidence that she had the specific intent to defraud, and accordingly, did not satisfy the elements substantive offenses or the conspiracy charge. of either the At bottom, her claim is that she lacked education and sophistication, and her role at NPC and MBA was purely administrative. She argues that she had no knowledge of Hollenbeck s activities and was simply following orders from Lomas and Young. Holohan s argument lacks merit. The evidence adduced at trial indicated that although Holohan worked in a largely administrative capacity, overall to scheme essential serious defraud character: financial she (1) willfully with she trouble participated knew because that the there the knowledge significant in of its business was in virtually no was advertising revenue; (2) she was clearly aware that Lomas was using investor money for his personal expenditures, and she herself received the benefit of a free company Jaguar automobile and, over the course of less than five years, a series of nonsalary bonuses exceeding two hundred thousand dollars; (3) she knew that investor money was being improperly used to make lease payments; misleading (4) she knew advertisements that MBA that was implied using they deceitful were and raising advertising revenue and that revenue would be used to make the lease payments, when those representations simply were not true; 9 (5) she knew that while MBA advertising materials claimed that investor funds would be kept in trust, inaccessible to MBA or its related entities, this was not the case. direct and conclude circumstantial that the jury evidence acted In light of the presented reasonably in at finding trial, beyond we a reasonable doubt that she was guilty and we do not disturb its verdict. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10
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