US v. Bennie Mack, Jr., No. 08-5056 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5056 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENNIE A. MACK, JR., Defendant - Appellant. No. 10-6648 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENNIE A. MACK, JR., Defendant - Appellee. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00267-WLO-1) Submitted: October 31, 2011 Decided: November 29, 2011 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Frank J. Chut, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Bennie A. Mack, Jr. appeals his conviction and sentence of 135 months in prison after a jury convicted him of eleven counts of wire fraud in violation of 18 U.S.C. § 1343 (2006). Mack s attorney has filed a brief pursuant to Anders v. California, 386 there no are U.S. 738 (1967), meritorious numerous issues. asserting, grounds for in appeal, his but opinion, raising Mack has filed a pro se supplemental brief and a pro se reply brief. We dismiss the appeal in part, and we affirm the district court s judgment. Mack first contends the district court judge erred in failing to recuse himself. We review this issue for abuse of discretion. See United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). A judge has a general duty to disqualify himself in any proceeding in which his impartiality might reasonably be questioned. F.3d 567, 28 U.S.C. § 455(a) (2006); Belue v. Leventhal, 640 572 (4th Cir. 2011). He should also disqualify himself where he has a personal bias or prejudice concerning a party, and when he has a financial interest in the subject matter in controversy that could be substantially affected by the outcome of the proceeding. 28 U.S.C. § 455(b) (2006). Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. 510 U.S. 540, 555 (1994). Liteky v. United States, A judge is not disqualified because 3 he has been sued by a defendant in a criminal case. States v. Watson, 1 F.3d 733, 735 (8th Cir. 1993). United [R]ecusal decisions reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating Belue, 640 F.3d at 574. strategic reasons. the system for We have reviewed the record and conclude that the district court judge did not abuse his discretion in not recusing himself. Mack next claims he was prejudiced by the conflict of interest of his former standby counsel. We may address a claim of ineffective assistance of counsel on direct appeal only if the lawyer s record. ineffectiveness conclusively appears from the United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). To prevail on a conflict claim, a defendant must prove both that his attorney labored under an actual conflict of interest and that the attorney s conflict adversely affected his representation. (4th Cir. 2009). Id. Stephens v. Branker, 570 F.3d 198, 209 If he does so, then prejudice is presumed. Adverse effect cannot be presumed, however, from the mere existence of a conflict of interest. Id. We conclude the record does not conclusively show counsel was ineffective. Mack next contends that the district court erred in denying his motion to dismiss a juror for cause. 4 It is well- settled, of course, that an accused is entitled under the Sixth Amendment to trial by a jury composed of those who will adhere to the law and fairly judge the evidence. Smith, 451 F.3d 209, 219 (4th Cir. 2006). the district court s conclusions on United States v. Deference is due to that question, and burden of proving partiality is upon the challenger. the United States v. Turner, 389 F.3d 111, 117-18 (4th Cir. 2004). We review the district court s refusal to excuse a juror for abuse of discretion. Cir. 1995). United States v. Capers, 61 F.3d 1100, 1104 (4th We have reviewed the record and conclude that the district court did not abuse its discretion. Mack next contends the district court erred in denying his Fed. R. Crim. P. 29 motion based on sufficiency of the evidence. We review a district court s denial of a motion for judgment of acquittal de novo. United States v. Hickman, 626 F.3d 756, 762 (4th Cir. 2010). We are obliged to sustain a guilty verdict favorable to evidence. Cir. the viewing the prosecution, evidence is in supported the light most by substantial United States v. Osborne, 514 F.3d 377, 385 (4th 2008) (internal Substantial evidence that, evidence that a quotation in the reasonable marks and citations context of a criminal finder of fact could omitted). action is accept as adequate and sufficient to support a conclusion of a defendant s 5 guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). A defendant bringing a sufficiency challenge bears a heavy burden. Cir. 1995). not review United States v. Hoyte, 51 F.3d 1239, 1245 (4th In evaluating the sufficiency of evidence, we do the credibility of witnesses and assume the jury resolved all contradictions in the testimony in favor of the Government. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). Reversal for insufficient evidence is reserved for the rare case where the prosecution s failure is clear. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). The (2006) are: elements of wire fraud under 18 U.S.C. § 1343 (1) existence of a scheme to defraud; (2) involving a material misrepresentation; and (3) use of wire communications in furtherance of that scheme. Neder v. United States, 527 U.S. 1, 25 (1999); United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007). To establish a scheme to defraud, the Government must prove that the defendant acted with the specific intent to defraud, which may be inferred from the totality circumstances and need not be proven by direct evidence. States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001). of the United A person s plan to convert funds to his personal use after representing they will be used for others constitutes a scheme to defraud. 6 See United States v. Hawkey, 148 F.3d 920, 924 (8th Cir. 1998). The intent to repay eventually is irrelevant to the question of guilt for omitted). fraud. Allen, 491 F.3d at 186 (citations We have reviewed the record and conclude that the evidence was sufficient to support the convictions. Mack next contends that a law enforcement officer destroyed exculpatory evidence, and the district court erred in denying his motion to dismiss the indictment. After an evidentiary hearing, the district court found that although Mack did give an officer some documents to copy, and they were lost, there was no evidence they were exculpatory in nature, that the officer acted in bad faith, or that Mack was unable to obtain comparable evidence by other reasonably available means. We review the district court s factual findings for clear error and its legal conclusions de novo. Woolfolk, 399 F.3d 590, 594 (4th Cir. United States v. 2005). The duty to preserve evidence arises when the evidence both possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain available means. (1984). comparable evidence by other reasonably California v. Trombetta, 467 U.S. 479, 488-89 [U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. 7 Arizona v. requires Youngblood, that the 488 officer U.S. 51, have 58 (1988). intentionally Bad faith withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial. 221 F.3d 656, 663 (4th Cir. 2000). Jean v. Collins, We have reviewed the record and conclude that the district court did not err in denying Mack s motion to dismiss the indictment. Mack next contends he was denied complete discovery or adequate access to discovery, and the district court erred in denying him a second continuance to review discovery materials. We review a district court s decision under Fed. R. Crim. P. 16 for abuse of discretion. 616, 621-22 (4th Cir. United States v. Caro, 597 F.3d 608, 2010). A defendant must establish prejudice to obtain reversal of a conviction for a discovery violation. United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). We review the denial of a motion to continue for abuse of discretion; and even if abuse is found, a defendant must show that the error prejudiced his case in order to prevail on appeal. United States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006). We have reviewed the record and conclude that the district court did not abuse its discretion. Mack next claims he was subjected to unconstitutional double jeopardy Government for when the prosecution. state We 8 referred conclude his that case this to the claim is without merit. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985); United v. States Lanza, 260 U.S. 377, 384 (1922); United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006); United States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003). Mack next claims that he was denied the right to call and cross-examine witnesses due to the district court s denial of his requests under Fed. R. Crim. P. 17(b) and its evidentiary rulings. The grant or denial of a request for subpoenas under Rule 17(b) is vested in the sound discretion of the district court, and the district court may deny a motion for compulsory production of witnesses who cannot offer relevant evidence. United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 1982). We review a district court s evidentiary rulings for abuse of discretion and will only overturn an evidentiary ruling that is arbitrary and irrational. F.3d 146, 153 (4th Cir. 2011). United States v. Cole, 631 District courts retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, confusion of the issues, and interrogation marginally relevant. (1986). We have that is repetitive or only Delaware v. Van Arsdall, 475 U.S. 673, 679 reviewed the record and conclude that the district court did not abuse its discretion. Mack s remaining issues are sentencing issues. He contends the district court erred in calculating loss under U.S. 9 Sentencing Guidelines Manual § 2B1.1(b)(1) (2008); in finding he abused a position of trust under USSG § 3B1.3; in finding he obstructed justice under USSG § 3C1.1; in finding his offense involved sophisticated means under USSG § 2B1.1(b)(9)(C); in denying his request for downward departure based on time served; and in calculating his criminal history category. We review a discretion standard. (2007). that under a deferential abuse-of- Gall v. United States, 552 U.S. 38, 51 The first step in this review requires us to ensure the error, sentence district such as court committed improperly no significant calculating the procedural Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. Carter, 564 F.3d 325, 328 (4th Cir. 2009). procedurally reasonable, we then United States v. If the sentence is consider the substantive reasonableness of the sentence imposed, taking into account the Gall, 552 U.S. at 51. totality of the circumstances. In determining whether the district court properly applied the advisory Guidelines, we review its legal conclusions de novo and its factual findings for clear error. States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). a sentence reasonable. within a Allen, properly 491 calculated F.3d at 198. Guidelines In United We presume range sentencing, is the district court should first calculate the Guidelines range and 10 give the parties an opportunity to argue for whatever sentence they deem appropriate. 473 (4th Cir. 2007). United States v. Pauley, 511 F.3d 468, The district court should then consider the relevant § 3553(a) factors to determine whether they support the sentence requested by either party. Id. When rendering a sentence, the district court must make and place on the record an individualized assessment based on the particular facts of the case. Carter, 564 F.3d at 328, 330. We district have court reviewed properly the record calculated Mack s range, and his sentence is reasonable. challenges the district court s and conclude advisory that the Guidelines To the extent that he decision to deny a downward departure, this decision is not reviewable and we dismiss this portion of the appeal. See Allen, 491 F.3d at 193. To the extent that he challenges the district court s decision not to sentence him below his advisory Guidelines range, we conclude that the district court did not abuse its discretion. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore dismiss the appeal in part, and we affirm the district court s judgment. We deny Mack s pro se motions to proceed pro se on appeal and to strike the Anders brief. We deny appellate counsel s motion to withdraw without prejudice to him refiling the motion at the appropriate time. 11 This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED IN PART; AFFIRMED IN PART 12

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