US v. Ronald Smith, Jr., No. 12-4270 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4270 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONALD WADE SMITH, JR., Defendant - Appellant. No. 12-4271 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRANCE KEITH CUNNINGHAM, Defendant - Appellant. No. 12-4272 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANGELA ALLISON DUTY SMITH, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:10-cr-00026-JPJ-PMS-1; 1:10-cr-00026-JPJ-PMS-2; 1:10cr-00026-JPJ-PMS-3) Submitted: March 29, 2013 Decided: May 3, 2013 Before GREGORY, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Rhonda Lee Overstreet, OVERSTREET SLOAN, PLLC, Bedford, Virginia; Barry L. Proctor, Abingdon, Virginia; Joseph Wheeler Rasnic, Jonesville, Virginia, for Appellants. Timothy J. Heaphy, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ronald Wade Smith, Jr., Angela Allison Duty Smith, and Terrance Keith Cunningham were convicted of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (2006), wire fraud, in violation of 18 U.S.C. § 1343 (2006), money laundering, in violation of 18 U.S.C. offenses, and sentenced § 1957 (2006), to 135, thirty-two, months imprisonment, respectively. and other and related eighty-four The charges stemmed from their participation in a Ponzi scheme, involving an investment club that offered impossibly high returns, purportedly generated through trades on the foreign exchange market using a complex computer program. In these consolidated appeals, Ronald Smith appeals his sentence, Angela Smith her convictions, and Terrance Cunningham his convictions and sentence. I. Ronald Smith challenges his sentence, contending that the district court erred in applying a two-level obstruction enhancement. properly In applied interpretation of determining whether the Guidelines, the Guidelines findings for clear error. 679 (4th Cir. 2004). the this de district court novo and court reviews its has its factual United States v. Quinn, 359 F.3d 666, Guideline section 3C1.1 provides for a two-level increase where the defendant willfully obstructs or attempts to obstruct the investigation or prosecution of the 3 offense of conviction. Section 3C1.1 covers conduct occurring prior to the start of the investigation if such conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the instant offense. U.S. Sentencing Guidelines Manual ( USSG ) § 3C1.1 cmt. n.1 (2010). We conclude that the district court did not clearly err in applying contention to the the obstruction contrary, enhancement. ample evidence Despite his supports the conclusion that Ronald Smith engaged in conduct that was both purposefully calculated and likely to thwart the investigation. He pled guilty to creating and disseminating to investors fraudulent SEC documents, investors testified at trial that he told them that this SEC investigation prevented the club from making distributions, defense counsel conceded that his conduct was calculated there s no question about that it was calculated for Mr. Smith to try to gain a little bit of time, and only one out of nearly 100 investors reported the club to authorities. II. Angela evidence Smith supporting her laundering convictions. challenges the conspiracy, sufficiency wire fraud, of and the money This court reviews de novo the district court s denial of a Rule 29 motion for judgment of acquittal. United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). court reviews the sufficiency of 4 the evidence This supporting a conviction by determining whether, in the light most favorable to the Government, there is substantial evidence in the record to support evidence the that conviction. a Id. reasonable Substantial finder of fact evidence could accept is as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable marks omitted). appropriate doubt. Id. quotation Reversal on grounds of insufficient evidence is only in cases where the present substantial evidence is clear. Angela conviction. (internal To Smith first obtain the required to prove: Government s failure to Id. challenges conviction, her the conspiracy Government was (1) the existence of an agreement between two or more persons (that is, a conspiracy); (2) the defendant s knowledge of the conspiracy; knowingly and voluntarily and became (3) that involved in the the defendant conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). A defendant may be a knowing and voluntary member of a conspiracy without knowing its full scope or taking part in the full range of its activities. blindness, Id. knowledge Moreover, under the doctrine of willful may be established deliberately avoided enlightenment. where the defendant United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992). We conspiracy conclude conviction. that substantial Angela 5 Smith evidence does not supports the contest the existence of Government a conspiracy, failed conspiracy s to instead prove existence and her her she contends direct that the of the However, the knowledge participation. Government sufficiently proved her knowledge or at least willful blindness, through evidence that she was the investment club s treasurer and secretary, that she signed checks misappropriating investor funds, and that she promoted the club to prospective investors. Angela Smith next challenges her wire fraud and money laundering convictions. To obtain the wire fraud convictions, the Government was required to prove: (1) a scheme to defraud, and (2) scheme. use of a wire communication in furtherance of the 2001). United States v. Bollin, 264 F.3d 391, 407 (4th Cir. To obtain the money laundering convictions, the Government was required to prove that the defendant knowingly engaged in a monetary transaction in property of a value of over $10,000 that was derived from specific unlawful activity. Campbell, 977 F.2d at 859. A conspirator may be convicted of an offense coconspirator committed committed during conspiracy. by the her course and in if the offense furtherance of was the United States v. Chorman, 910 F.2d 102, 110-11 (4th Cir. 1990). We wire fraud conclude and money that substantial laundering 6 evidence convictions. supports Angela the Smith contends that the Government did not establish the purpose of each individual underlying transaction through each individual transferor or transferee. such testimony, the Government testimony from However, even absent sufficiently proved each transaction s purpose through alternative evidence, such as bank records, investor files found in the Smith residence, and other witness testimony. the jury s This evidence provided adequate support for determination that the various transactions underlying the wire fraud and money laundering charges were in furtherance of or derived from the fraudulent scheme. III. Cunningham challenges both the sufficiency of the evidence supporting his convictions as well as his sentence. Cunningham first supporting his tampering money challenges wire fraud, convictions. laundering the His money of the evidence laundering, and witness challenge convictions, fails for the same reasons. sufficiency which to his mirrors wire fraud Angela and Smith s, As for his challenge to his witness tampering conviction, it too fails, in light of evidence that Cunningham persuaded one of the investors to email the others, advising: DO THINGS. See 18 U.S.C. § 1512(b) (2006) (a defendant is guilty of witness NOT CALL tampering THE when CFTC!!!!, he THIS knowingly 7 WILL corruptly ONLY DELAY persuaded another person with intent to prevent any person from testifying in an official proceeding). Cunningham also challenges his sentence, alleging that the district court erred in applying loss, victim number, and sophisticated means enhancements. We conclude that the district court did not clearly err in applying these enhancements. for the sixteen-level loss enhancement, Cunningham does As not contest that his offenses resulted in an over $1 million loss, but rather contends foreseeable to that him. As this for loss the was not four-level reasonably victim number enhancement, Cunningham again argues not that this figure is inaccurate but rather that the total number of victims was not reasonably foreseeable. However, the district court properly found that in light of Cunningham s significant involvement in the conspiracy, he either knew or reasonably should have known that the over $1 million loss was a potential result. same reason, the scheme s total reasonably foreseeable to him. difficulty that discretion in the enhancement was applicable. of victims was also Finally, we conclude without district determining number For the court that acted the well within sophisticated its means USSG § 2B1.1 cmt. n.8 (defining sophisticated means as especially complex or intricate offense conduct); United States v. Weiss, 630 F.3d 1263, 1279 (10th Cir. 8 2010) (an offense involves sophisticated means where the total scheme was undoubtedly sophisticated). Accordingly, we affirm Ronald Smith s sentence, Angela Smith s convictions, and Terrance Cunningham s convictions and sentence. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. AFFIRMED 9
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