US v. Samuel Gray, Sr.

Filing 920090710

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4406

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL ANDREW GRAY, SR., Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:05-cr-00888-TLW-1)

Submitted:

June 18, 2009

Decided:

July 10, 2009

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.

Michael W. Chesser, Aiken, South Carolina, for Appellant. John DiCicco, Acting Assistant Attorney General, Columbia, South Carolina, Alan Hechtkopf, Elissa Hart-Mahan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Samuel entered after a Andrew trial Gray, Sr. appeals him of from a judgment counts of

convicting

eighteen

failing to pay over to the Internal Revenue Service and the United States income tax, social security and Medicare taxes, withheld from Appellant's employees' wages, in violation of 26 U.S.C. § 7202 (2006) and 18 U.S.C. § 2 (2006), one count of conspiracy to commit fraud and to defraud the United States, in violation of 18 U.S.C. § 371 (2006), three counts of fraud, in violation of 18 U.S.C. § 2, 18 U.S.C.A. § 1341 (West Supp.

2009), three counts of receipt of stolen funds, in violation of 18 U.S.C. § 2315 (2006), and three counts of money laundering, in violation of 18 U.S.C. §§ 2, 1957 (2006). Counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying there were no meritorious arguments for appeal, but raises for the court's consideration whether the district court erred enhancing Gray's offense level by four levels after Gray The

finding Gray was in the business of laundering money. filed a pro se supplemental brief raising several issues. Government filed a brief addressing Gray's issues.

Because

there was an error with the order of restitution that was not harmless, we affirm the convictions, but vacate the sentence and remand for resentencing.

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Gray argues the district court erred continuing with a hearing interest, counsel after that retained he was counsel denied his identified Sixth a conflict right notice an of to of

Amendment due to to a

because and

his he

funds

were

frozen right

forfeiture witness.

was

denied

his

hire

expert

These issues rise from a protective order freezing

certain assets owned by Gray because it appeared the assets were derived from Gray's criminal conduct. We find no error with the

court's decision to continue the November 8 hearing, primarily because the magistrate judge later found there was no conflict of interest and the primary topic of the hearing was the

potential conflict. Sixth Amendment

We further find Gray was not denied his to counsel. See Caplin & Drysdale,

right

Chartered v. United States, 491 U.S. 617, 630-31 (1989) (there is no Sixth Amendment right for criminal defendants to use

forfeitable assets for the purpose of retaining counsel of their choosing). With respect to the denial of an expert witness,

Gray's appointed counsel never sought funds for an expert, thus there was no error. There court's was to no abuse of a discretion letter in the by district Gray's See

decision

not

admit

written

attorney to the IRS regarding the sale of his business.

United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (stating standard of review). 3 The letter was clearly

inadmissible hearsay as it was being offered for the truth of the assertions. See Fed. R. Evid. 802.

We also find no abuse of discretion with respect to jury instructions on willful blindness or the instructions for the tax evading charges. See United States v. Abbas, 74 F.3d The was

506, 513 (4th Cir. 1996) (stating standard of review). Government's evidence supported an inference that Gray

willfully blind to the source and the legality of the funds he was receiving from Steve Miller. We also note the court's

instructions for Counts One through Eighteen followed the text of the statute and focused on the fact that the allegation was that Gray may have withheld the taxes from employees' paychecks, but did not forward the taxes to the proper federal agency. With the exception of the amount of restitution, we find no error or prejudice suffered by Gray with respect to the district court's findings at sentencing. a district court properly applied the In determining whether advisory Guidelines,

including application of any sentencing enhancements, we review the district court's legal conclusions de novo and its factual findings for clear error. 377, 387 (4th Cir. 2008). United States v. Osborne, 514 F.3d The district court's United credibility States v.

determinations

receive

"great

deference."

Feurtado, 191 F.3d 420, 424 n. 2 (4th Cir. 1999). clear error in the court's decision 4 to apply

There was no a four-level

enhancement

under

U.S.

Sentencing

Guidelines

Manual

§ 2S1.1(b)(2)(C) (2002) upon finding Gray was in the business of money laundering. We also find no clear error in the two-level

enhancement under USSG § 3C1.1 for obstruction of justice based on Gray's testimony at trial. gave "false testimony The court properly found a material matter with Gray the

concerning

willful intent to provide false testimony" under oath. States v. Dunnigan, 507 U.S. 87, 94-95 (1993).

United

We further find

Gray was not prejudiced by the two-level enhancement for using sophisticated means to conceal his fraud. not prejudiced because the court We also find Gray was to rule upon his

declined

objection to the amount of loss.

A decision in his favor would

not have impacted the offense level. We do, however, conclude there was error in the amount of restitution ordered by the district court and the error was not harmless. against Gray. restitution specific is This issue was contested at sentencing and ruled As the Government now concedes, the amount of allowed that only is "for the the loss[es] of caused by the of

conduct

basis

the

offense

conviction."

Hughey v. United States, 495 U.S. 411, 413, 418

(1990); United States v. Newsome, 322 F.3d 328, 341 (4th Cir. 2003) ("[I]t is the `offense of conviction,' not the `relevant conduct,' that must be the cause of losses the attributable in as the

restitutionary

liability.").

Because 5

difference

amount

of

restitution

is

significant,

we

will

vacate

the

sentence and remand for the court to reenter a new order of restitution. reasonable. In all other respects, we find the sentence

See Gall v. United States, 552 U.S. 38, __, 128 S.

Ct. 586, 597 (2007) (stating standard of review). We have reviewed the sufficiency of the evidence and find no meritorious issues in this regard. In accordance with

Anders, we have reviewed the entire record in this case and have found no other meritorious issues. We therefore affirm Gray's

convictions and vacate the sentence and remand for the limited purpose of having the district court enter a new order of

restitution, limiting restitution to the amounts contained in the offenses of convictions. We deny Gray's motions for a copy

of the Grand Jury minutes and to have his counsel relieved. This court requires counsel inform his client, in writing, of the right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel

believes

that

petition

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 contentions are adequately

6

presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART

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