US v. Bennie Mack, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed pro se [998638323-2]; denying Motion to strike Andes brief [998429336-2]; denying counsel's Motion to withdraw [998641371-2] Originating case number: 1:08-cr-00267-WLO-1. Copies to all parties and the district court/agency. [998731306].. [08-5056, 10-6648]

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UNPUBLISHED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.

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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.

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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

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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-

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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

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guilt beyond a reasonable doubt.”

Page: 6 of 12

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.
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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

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Arizona

v.

“requires

Date Filed: 11/29/2011

Youngblood,
that

the

488

officer

U.S.

Page: 8 of 12

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

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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.
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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
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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.
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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