US v. Mary Dowdell

Filing 920090105


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4299 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARY ELLEN DOWDELL, Defendant - Appellant. No. 08-4300 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK SMYTH, Defendant - Appellant. No. 08-4308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY SMYTH, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:07-cr-00010-nkm-6; 3:07-cr-00010-nkm-8; 3:07-cr-00010-nkm-9) Submitted: November 24, 2008 Decided: January 5, 2009 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. David A. Eustis, EUSTIS & GRAHAM, PC, Charlottesville, Virginia; B. Stephanie Commander, Charlottesville, Virginia; David L. Heilberg, Charlottesville, Virginia, for Appellants. Julia C. Dudley, United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In early 1998, Terry Dowdell started operating a Ponzi scheme through his company, Vavasseur Corporation. Federal investigations of the scheme ensued and on November 19, 2001, Dowdell's order assets was were later frozen through a temporary a series restraining of orders which extended through culminating in a permanent injunction. Terry Dowdell eventually pled guilty to securities and wire fraud charges. In April 2007, a federal grand jury charged two brothers, Mark and Gregory Smyth, and Terry's wife, Mary Ellen Dowdell, in Count Three of a multi-count, multi-defendant superseding indictment with conspiracy to commit wire fraud, in violation of 18 U.S.C. 1343, 2 (2006). Specifically, the indictment charged that over $800,000 in funds subject to the orders freezing Terry Dowdell's assets were wired to the Smyth brothers and that Mary Dowdell received and negotiated checks drawn on the accounts into which these funds were transferred and that she otherwise benefited from the funds when they were used to make payments on a credit card account she held with her husband. The Smyth brothers each pled guilty to aiding and abetting to commit wire fraud. A jury convicted Mary Dowdell of The district court sentenced conspiracy to commit wire fraud. Gregory Smyth to thirty-seven months' imprisonment, Mark Smyth 3 to forty-four months' imprisonment, and Dowdell to sixty months' imprisonment. sentences. sentence. Gregory Mary and Mark Smyth from appeal her from their and Dowdell appeals conviction The appeals have been consolidated. We first address Dowdell's challenge to her conviction. Dowdell argues that the district court erred by denying her Fed. R. Crim. P. 29 motion for judgment of acquittal because there was scant evidence that she specifically received and negotiated the series of checks made payable to her from the Smyths or that she had any involvement in the payments made on the credit card. We Dowdell's review de novo the district court's denial of Rule 29 motion. United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008). Where, as here, the motion was based on a claim of insufficient evidence, "[t]he verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942); Reid, 523 F.3d at 317. To prove conspiracy to commit wire fraud, the Government need only establish that the defendant knowingly and voluntarily agreed to participate in a scheme to defraud and that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable. Cir. 2003). 4 United States v. Hasson, 333 F.3d 1264, 1270 (11th Viewing the evidence in the light most favorable to the Government, there was substantial evidence that Dowdell knowingly and voluntarily agreed to participate in a scheme to defraud and that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable. The Government presented evidence that the assets of Dowdell's husband, Terry, and his alter-ego, Vavasseur Corporation, were frozen continuously from November 19, 2001. Dowdell herself was named as a relief defendant in the order and received a copy of the order the day it issued. The Government also introduced evidence of the various transfers of Vavasseur funds from the Smyth brothers to Mary personally, to her company, Willowood, and to the credit card account held by the Dowdells and evidence of Mary's personal involvement in cashing checks issued by the Smyths. Viewing this and the other trial evidence of transfers of funds to Mary's benefit from the time that the asset freeze went into effect, we find that the evidence was sufficient to support Mary's conviction for conspiracy to commit wire fraud. Turning to the sentencing issues, we review a sentence imposed by the district court for reasonableness. United States v. Booker, 543 U.S. 220, 260-61 (2005). In sentencing a defendant post-Booker, a district court must correctly calculate the appropriate advisory guidelines 5 range. Gall v. United States, 128 S. Ct. 586, 596 (2007) (citing Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). The court then must consider that range in conjunction with the 18 U.S.C. 3553(a) (2006) factors. Gall, 128 S. Ct. at 596. In imposing a sentence, the court "may not presume that the guidelines range is reasonable," but rather "must make an individualized The assessment based on the facts presented." Id. at 596-97. district court also "must adequately explain the chosen sentence to allow for meaningful appellate review." Id. at 597. Appellate review of a district court's imposition of a sentence (whether inside or outside of the guidelines range) is for abuse of discretion. Id.; see also United States v. Pauley, The appellate court 511 F.3d 468, 473 (4th Cir. 2007). must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Gall, 128 S. Ct. at 597. 6 Turning first to Dowdell's sentence, the district court determined that her base offense level was six, under U.S. Sentencing Guidelines Manual 2B1.1(a)(2) (2007). a fourteen-level increase under USSG She received because 2B1.1(b)(1)(H) the offense involved a loss amount of more than $400,000 and less than $1 million. Because the offense involved the violation of a court order, Dowdell's offense level was raised an additional two levels pursuant to USSG 2B1.1(b)(8)(C). offense level was raised two more levels under The USSG 2B1.1(b)(9)(B) because a substantial part of the scheme was committed outside of the United States. Finally, the district court applied a two-level increase in offense level under USSG 3C1.1 for obstruction of justice because the court found that Dowdell committed perjury when she testified at trial. had no criminal history points. Dowdell With a total offense level of twenty-four and criminal history category I, Dowdell's guideline range was sixty-three to seventy-eight months' imprisonment. USSG ch. 5, pt. A (sentencing table). However, because the then-applicable statutory maximum sentence of five years under 1343 * was less than the guideline range, the statutory maximum became the guideline range. * See USSG 5G1.1. The statutory maximum for 1343 offenses has since been raised to twenty years. See 18 U.S.C.A. 1343 (West Supp. 2008). 7 Dowdell challenges her sentence on several grounds. First, she contends that the district court erred by imposing the obstruction of justice enhancement. A sentencing court must impose a two-level adjustment under 3C1.1 if the defendant willfully obstructed or impeded the administration of justice during the investigation, prosecution, or sentencing of the offense of conviction. of justice increase In the case of perjury, the obstruction applies if the court finds that the defendant gave false testimony under oath "concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993); USSG 3C1.1 cmt. n.4(b). In the face of substantial evidence of her guilt, We Dowdell took the stand and flatly denied any wrongdoing. find no clear error in the 3C1.1 enhancement. Dowdell also challenges the inclusion of a $512,000 check she co-signed in determining the loss attributable to her for relevant to conduct, the contending that this transfer 1B1.3(a), was not related conspiracy. Under USSG unless otherwise specified, relevant conduct shall be determined based on (1) "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant," and (2) "in the case of a jointly undertaken criminal activity (a criminal 8 plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy) all reasonably foreseeable acts and omissions of others in furtherance of the jointly Uncharged undertaken crimes criminal be activity." USSG 1B1.3(a). for may considered "relevant conduct" sentencing purposes, as can charges that were dismissed or for which the defendant was acquitted. U.S. 148, 155-56 (1997). The evidence presented at trial supported a finding that the transfer of the $512,000 was related to the conspiracy. The day after her husband's assets were frozen, Dowdell United States v. Watts, 519 facilitated the transfer of $512,000 from an account over which Terry had signatory authority into an account over which he had no such authority. Although this particular transaction was not charged in the indictment and did not itself include a wire transfer, it reflects the general conspiracy charged in the indictment to move funds in accounts covered by the asset freeze into other accounts where the Dowdell family and others could benefit court from did them. err We by therefore including conclude the that the in district the loss not $512,000 calculation. Finally, Dowdell argues that the district court failed to adequately consider the 3553(a) factors. A district court's explanation for the sentence it imposes must be sufficient to 9 enable the appellate but need court not to effectively review all its the reasonableness, mechanically discuss factors listed in 3553(a). United States v. Montes-Pineda, The court's explanation 445 F.3d 375, 380 (4th Cir. 2006). should indicate that it considered the 3553(a) factors and the arguments raised by the parties. Id. This court does not evaluate the adequacy of the district court's explanation "in a vacuum," but also considers "[t]he context surrounding a district court's explanation." The guideline district court the Id. at 381. correctly calculated as Dowdell's and range, treated guidelines advisory, considered the 3553(a) factors. The court sentenced her to We find the statutory maximum, which was her guideline range. that Dowdell presented no information to rebut the presumption that her within-guideline sentence is reasonable. The guideline calculations for the Smyth brothers were identical. The base offense level was six, under U.S. Sentencing Guidelines Manual 2B1.1(a)(2) (2007). level was increased by fourteen the $1 levels, This offense to USSG than pursuant 2B1.1(b)(1)(H) $400,000, but because less than offense million. involved Because more the offense involved the violation of a court order, the offense level was raised an additional two levels pursuant to USSG 2B1.1(b)(8)(C). The offense level was raised an additional 10 two levels under USSG 3C1.1 for obstruction of justice for providing brothers brothers offense a false and from misleading Terry a to accounting and of $500,000 the The in of received also level Dowdell Vavasseur. adjustment acceptance received pursuant two-level USSG downward for 3E1.1(a) responsibility. Neither brother had any criminal history points. a total offense I, each level of twenty-two guideline and range criminal was With history to category brother's forty-one fifty-one months' imprisonment. In Gregory Smyth's case, the Government asked the court to consider that he pled guilty and convinced his brother to plead guilty, saving the Government and the court time from preparing for Mark Smyth's trial. Stating that it had considered the 3553(a) factors and the advisory guidelines, the court sentenced Gregory Smyth to thirty-seven months in prison, four months below the bottom of the guideline range. Mark Smyth contended that it was he who convinced his brother to plead guilty. After considering the 3553(a) factors and the advisory guidelines, the court initially planned to sentence Mark Smyth to fifty-one months in prison, the top of the guideline range. However, Mark Smyth asserted that it was he who convinced his brother to plead guilty and to avoid a gross disparity in sentences, the 11 court ultimately sentenced Mark Smyth to forty-four months in prison, a sentence in the middle of his guideline range. On appeal, the Smyths argue that the district court erred by applying USSG 3C1.1 to increase their offense levels for obstruction of justice. This enhancement was based on the brothers' false accounting of the $500,000 they received from Vavasseur that they presented to Terry Dowdell. When well aware they prepared the accounting, the lead the Smyths were in a that Terry Dowdell was defendant pending civil action filed by the SEC in federal court involving the mishandling of funds. Dowdell's admissions that They knew that, in response to Terry Vavasseur was a Ponzi scheme, the court issued an order shutting down the company and freezing Terry Dowdell's assets. They also knew that the SEC was interested in the $500,000 that the Smyths received. Dowdell a false accounting of the funds, knowing They sent that this information was going to "the lawyers." The relevant guideline commentary to USSG 3C1.1 lists "producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding" as a ground for the obstruction adjustment. USSG 3C1.1 cmt. n.4(c). The brothers claim that the enhancement should not apply because they did not provide the false accounting to any court, law enforcement officer, or 12 any other government official or entity, but rather to Terry Dowdell and his attorney. Even though the brothers sent the false information to private individuals, they knew that it would be used in connection with a federal court case. evidence supported the district A preponderance of the conclusion that the court's purpose of the letter was to obstruct justice by deceiving the SEC about these funds. Accordingly, we find that the district court properly applied the 3C1.1 enhancement to each of the Smyths. Finally, like Mary Dowdell, the Smyths argue that the district factors. Smyth court failed to adequately address the 3553(a) We find that district court correctly calculated the respective guideline ranges, treated the brothers' guidelines as advisory, and considered the 3553(a) factors. We find that Mark Smyth failed to rebut the presumption that his within-guideline sentence is reasonable. We further find Gregory Smyth's below-guideline sentence to be reasonable. For these reasons, we affirm Mary Dowdell's conviction and sentence and affirm Gregory and Mark Smyth's sentences. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 13

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