US v. Joseph Brunson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00615-MBS-1. Copies to all parties and the district court/agency. [998869519]. [11-4071, 11-4072, 11-4073]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4071

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH BERNARD BRUNSON,
Defendant - Appellant.

No. 11-4072

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY MCQUEEN,
Defendant - Appellant.

No. 11-4073

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

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TONY B. POUGH,
Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Columbia.
Margaret B. Seymour, District
Judge.
(3:08-cr-00615-MBS-1;
3:08-cr-00615-MBS-2;
3:08-cr00615-MBS-3;)

Argued:

March 22, 2012

Decided:

June 6, 2012

Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: William Michael Duncan, AUSTIN, & ROGERS, PA, Columbia,
South Carolina; Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC,
Columbia, South Carolina; Parks Nolan Small, OFFICE OF THE
FEDERAL
PUBLIC
DEFENDER,
Columbia,
South
Carolina,
for
Appellants.
Winston David Holliday, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON
BRIEF: William N. Nettles, United States Attorney, Jeffrey
Mikell Johnson, Assistant United States Attorney, Robert F.
Daley, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

2

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PER CURIAM:
Joseph
(collectively

Brunson,

the

Timothy

Appellants)

McQueen,

operated

a

and

Ponzi

bilked investors out of more than $56,000,000.00.

Tony

Pough

scheme

that

Following a

jury trial, the Appellants were convicted of numerous offenses
arising from this scheme.

They raise three issues on appeal:

(1) whether the district court erred when it appointed full-time
counsel

over

their

respective

objections;

(2)

whether

the

district court erred in sentencing each of them to the low-end
of

their

respective

Guidelines

range;

and

(3)

whether

the

district court abused its discretion in keeping portions of a
related civil receivership case sealed until after the trial.
For the reasons stated below, we affirm.

I
From approximately September 2004 until August 2008,
the Appellants, who refer to themselves as the “Three Hebrew
Boys,”

operated

a

Ponzi

scheme

primarily

through

Capital

Consortium Group (CCG), a business entity created to facilitate
scheme. 1

the

CCG

offered

investors,

1

referred

to

as

“Three Hebrews Boys” is a reference to the Book of Daniel,
which contains the Old Testament story of Daniel’s three
friends, Shadrach, Meshach, and Abednego, who were ordered by
King Nebechadnezzar to be thrown into a fiery furnace. Daniel’s
friends survived the experience through their faith in God.
(Continued)
3

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“constituents”

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by

the

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Appellants,

thousands

of

investment

products, but the vast majority of these products related to
either

debt

elimination

or

high-yield

returns.

The

debt

elimination products marketed by CCG guaranteed to eliminate the
debt (e.g., mortgage, auto, credit card, or student loan) of the
purchaser of the product.

Typically, the purchaser agreed to

pay up-front a fraction of the debt and agreed to wait a period
of time before realizing any return on the investment.

For its

part, CCG agreed to eliminate the debt at the conclusion of this
waiting period.
The high-yield return products offered what amounted
to a fanciful return on the principal.

For example, the “Short-

Term Program” guaranteed that the investor would earn 10% per
month on his or her principal until the end of the year at which
time the investor was returned the principal.
charged

up-front

for

this

program.

The

A 5% fee was

“Long-Term

Program”

allowed investors to invest any amount, and, after ninety-one
business days, they received 10% of their principal every month
for the rest of their lives.
for

this

$100,000.00

program.
toward

The
four

A 5% fee was also charged up-front
“College

years

of

Tuition

college

Program”

tuition.

offered
The

fees

Like Daniel’s friends, the Appellants claim to have been thrown
into a fiery furnace and survived as well.
4

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charged depended on what grade the student was in at the time
the money was invested.

For example, if the student was a

freshman in high school, for a $2,100.00 fee, the student would
receive $25,000.00 per year for four years of college.
Like

many

Ponzi

schemes,

exceptionally high rates of return.

early

investors

received

Such returns, of course,

were not generated by the success of the investment products,
but rather through the contributions of new investors or from
earlier investors who continued to invest their money.

In fact,

very little of the money received by CCG was invested at all. 2
Instead, the Appellants used the money for their personal use,
to buy, among other things, real estate, a $1,000,000.00 RV, a
Gulfstream

jet,

luxury

cars,

other luxury personal items.

football

stadium

skyboxes,

and

The actual loss generated by the

scheme was approximately $56,000,000.00.
Unfortunately, the individuals the Appellants targeted
to invest in their fraudulent investment programs were church
members,

their

families,

and

friends,

members, their families, and friends. 3

and

military

service

Investment seminars were

2

Potential investors were told that CCG used “sweep
accounts” to deposit money in foreign exchange markets, which,
in turn, would yield extraordinarily high rates (sometimes in
the neighborhood of 200% to 500% per day) of return.
3

CCG held itself out as a “ministry” designed to free its
clients from the bondage of debt.
McQueen and Brunson both
(Continued)
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often held in churches and homes, and secrecy was a touchstone
of the scheme--investors were required to sign a nondisclosure
agreement which subjected them to a $1,000,000.00 fine if they
disclosed the contents of the program.

Over 7,000 individuals

were victimized by the actions of the Appellants, with an actual
loss in excess of $56,000,000.00.
In
South

August

Carolina

2006,

began

state

to

law

enforcement

investigate

CCG

officers

after

in

receiving

information from the North Carolina Secretary of State’s office
concerning a complaint filed with that office challenging the
business practices of CCG.
was

executed

at

CCG’s

In June 2007, a state search warrant

offices

in

Columbia,

South

Carolina.

During the search, a thumb drive was seized which contained a
spreadsheet
investors.

listing

the

names

and

addresses

of

over

7,000

The spreadsheet showed that these investors invested

over $82,000,000.00 in approximately 14,000 CCG programs.
On August 1, 2007, the government filed a sealed, ex
parte motion for a preindictment restraining order to prevent
the Appellants from disposing of assets related to CCG and to
appoint a receiver who would identify and preserve CCG-related
assets

while

following

the

day,

investigation

the

district

into

court

CCG

was

entered

pending.
a

The

sealed

order

received honorable discharges from the United States Army.
6

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granting
district

the

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government’s

court

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motion.

converted

the

On

August

restraining

31,

2007,

order

into

the
a

preliminary injunction.
On September 5, 2007, the district court entered an
order outlining the receiver’s duties, as well as listing the
Appellants’ responsibilities concerning their cooperation with
the receiver.

Among other things, the order specified that the

Appellants were to deliver property, monies, books, and records
upon the receiver’s demand and were to take no action, directly
or indirectly, to hinder, obstruct, or otherwise interfere with
the receiver in the conduct of his duties or with the custody,
possession, management, or control by the receiver of the funds,
assets, or premises involved in the case.
On

May

27,

2008,

a

criminal

complaint

against

the

Appellants was filed in the United States District Court for the
District of South Carolina.

On June 20, 2008, a federal grand

jury in the District of South Carolina returned an indictment
charging the Appellants with one count of conspiracy to commit
mail fraud under 18 U.S.C. §§ 1341 and 1349 (Count One) and
thirty-five substantive counts of mail fraud under 18 U.S.C.
§§ 1341 and 2 (Counts Two to Thirty-Six).

The indictment also

included a number of criminal forfeiture counts.
On

August

21,

2008,

the

grand

jury

returned

a

superseding indictment against the Appellants which added ten
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counts of transporting stolen funds in interstate commerce under
18 U.S.C. §§ 2314 and 2 (Counts Thirty-Seven to Forty-Six) and
twelve counts of money laundering under 18 U.S.C. §§ 1957 and 2
(Counts Forty-Seven to Fifty-Eight).
Prior
court

to

released

trial
certain

in

the

criminal

deposition

receivership case to the Appellants.

case,

the

transcripts

district
in

the

On October 28 and November

2, 2009, McQueen and Pough filed motions to unseal the remainder
of the receivership case.
A jury trial began on November 10, 2009 and concluded
on November 20, 2009.
all counts.

The jury returned a verdict of guilty on

The jury also returned an $82,000,000.00 forfeiture

verdict against the Appellants.
On November 29, 2009, the district court granted in
part and denied in part the motions to unseal the remainder of
the receivership case.

In its order, the district court ruled

that certain documents generated “for the court’s eyes only” and
those “concern[ing] grand jury matters” would remain sealed.
The

district

court

conducted

sentencing hearing on December 14, 2010.

the

Appellants’

By a judgment entered

on January 14, 2011, the district court sentenced Pough to a
total

of

McQueen

360
each

months’
to

a

imprisonment

total

of

324

and

months’

Appellants filed timely notices of appeal.
8

sentenced

Brunson

imprisonment.

and
The

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II
The principal claim raised by the Appellants concerns
the district court’s decision appointing full-time counsel in
January

2009

over

their

objections.

According

to

the

Appellants, this decision violated their Sixth Amendment right
to counsel.

Before turning to the relevant law concerning this

claim, we set forth the relevant facts.

A
On June 3, 2008, at the Appellants’ detention hearing
in

the

criminal

provisionally

case,

United

the

appointed

a

same

States
three

Magistrate
attorneys

represented the Appellants in the receivership case.
attorney
judge

status

relieved

conference

on

provisionally

June

23,

appointed

2008,
counsel

the

Judge

who

had

During an
magistrate

based

on

the

Appellants’ indication that they wanted to proceed pro se.
On July 21, 2008, the government filed a motion for
the

district

court

to

appoint

standby

counsel

to

assist

the

Appellants.

On July 29 and 30, 2008, prior to a hearing on the

government’s

motion,

pro se motions.

the

Appellants

filed

several

nonsensical

These motions were styled as a “Motion to

Dismiss [Pursuant to] F.R.C.P. 12,” a “Third-Party Complaint in
Rem,” a “Notice and Demand Without Dishonor for Discovery by
Interrogatory for the Record,” and a “Demand to Quash Due to
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Assuming Facts Not in Evidence, Falsification of the Record,
Withholding Exculpatory Evidence, and Denial of Due Process &
Fraud.”
In
various

these

voluminous

nonsensical

and

filings,

frivolous

jurisdiction of the district court.

the

Appellants

claims

raised

attacking

the

For example, the Appellants

claimed that the United States District Court for the District
of South Carolina “is a privately owned Commercial Corporation”
and that the United States is a “501C3 NON PROFIT OR RELIGIOUS
CORPORATION or CHARITABLE TRUST.”
they

were

“Corporate
payment

of

entitled
Surety
gift

to

full

Bonds”
and

payment

that

estate

The Appellants insisted that
and

the

the

government

taxes.

The

surrender
owed

of

for

non-

Appellants

also

contended that they were “Civilly Dead under the Doctrine of
Mortmain or Deadhand as designated in French.” 4
On August 11, 2008, the magistrate judge conducted a
hearing on the government’s motion to appoint standby counsel
for the Appellants.
refused
case.

to

During this hearing, the Appellants each

acknowledge

that

they

were

the

defendants

in

the

When addressed by the magistrate judge, Brunson asked for

4

Mortmain, French for “deadhand,”
that is held “in perpetuity by an
corporation.”
Black’s Law Dictionary
mortmain statute typically is designed
from holding land in perpetuity. Id.
10

generally refers to land
ecclesiastical or other
1035 (8th ed. 1999).
A
to prevent such entities

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clarification whether the magistrate judge was addressing the
“defendant

or

.

.

the

live,

breathing

man,

Joseph

Brunson.”

Brunson claimed that he was appearing by “special visitation,”
as a “third party intervenor,” and/or as a “cross plaintiff.”
McQueen

and

Pough

made

similar

nonsensical

claims.

At

the

conclusion of the hearing, the magistrate judge appointed the
Appellants’

three

previous

attorneys

as

standby

counsel

and

informed the Appellants that they could “take advantage of their
abilities and skills and knowledge or not.”
On August 18, 2008, the district court held a hearing
on

various

motions

filed

by

the

Appellants.

The

Appellants

again announced that they were not the defendants and were not
under

the

district

court’s

jurisdiction,

arguing

that

the

indictment had been filed against a corporation spelled in all
capital letters whereas they spelled their names in upper-case
and lower-case letters.
offer

argument

in

When invited by the district court to

support

of

their

recited a litany of nonsensical claims.

motions,

the

Appellants

Based on these claims,

the district court advised the Appellants to retain counsel or
to take advantage of the services of their appointed counsel.
The district court then denied the Appellants’ motions.
On

August

22,

2008,

a

day

after

the

superseding

indictment was returned, the Appellants filed additional pro se
motions to quash the indictment, again arguing that the district
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court lacked jurisdiction.

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The same day, the Appellants filed a

pro se notice of appeal from the district court’s denial of
their motions on August 18, 2008.

On February 24, 2009, we

dismissed this interlocutory appeal.
On

September

26,

2008,

the

Appellants

another pro se motion in the district court.
titled

“Ex

Parte

For

Declaratory

Judgment

filed

yet

In the motion,
and

Relief,”

the

Appellants indicated that they were sovereigns not subject to
the district court’s jurisdiction.
On January 5, 2009, the government filed a motion to
have

standby

counsel

appointed

three of the Appellants.
the

Appellants’

district

court

January

29,

2009.

a

full-time

counsel

for

all

In the motion, the government outlined

disruptive
held

as

and

hearing
At

obstructive

on

the

conduct.

the

government’s

hearing,

Brunson

acknowledge that he was a defendant in the case.

The

motion
refused

on
to

Instead, he

claimed that he was the “attorney in fact for the defendant
Joseph

Bernard

Brunson,”

Bernard Brunson.”

appointed

by

the

defendant

“Joseph

For his part, McQueen claimed the criminal

case was “settled and closed” and that he was not there as a
defendant in the criminal case, but rather wished to proceed
“sui juris” on behalf of the defendant Timothy McQueen named in

12

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the

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indictment. 5

McQueen.
granted

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Pough

similar

took

a

approach

to

that

of

At the conclusion of the hearing, the district court
the

government’s

motion,

opining

that

the

Appellants

engaged in disruptive and obstructive conduct necessitating the
appointment of full-time counsel.

In so ruling, the district

court left the door open for the Appellants to secure substitute
counsel, if they decided to retain counsel on their own.
Unhappy
Appellants,

with

shortly

the

thereafter,

appointing full-time counsel.
on May 7, 2009.

district
moved

court’s
to

ruling,

rescind

the

the
order

A hearing on this motion was held

At the hearing, the district court observed

that a trial could not proceed without the appointment of fulltime counsel because the Appellants refused to acknowledge they
were the defendants named in the indictment.

Along a similar

vein, the district court observed that the trial could not move
forward because the Appellants would not even acknowledge who
was “talking” to the district court.

At the conclusion of the

hearing, the district court denied the motion, relying, again,
on the Appellants’ disruptive and obstructive behavior.
On October 27, 2009, the Appellants began to flood the
district court with another barrage of pro se filings.
5

These

“Sui juris” means in his “own right,” Black’s Law
Dictionary 1475 (8th ed. 1999) and is usually applied in a civil
context to denote that a party is of full age and capacity.
Cain v. Vontz, 703 F.2d 1279, 1281 (11th Cir. 1983).
13

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included

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motions

Administrative
termination

for

“Abatement

Proceeding
of

to

appointed

Forgiveness.”

The

Pg: 14 of 26

of

Proceeding

Settle

Matter,”

counsel,

district

and

court

notices

“Request[s]

conducted

conference the same day as these filings.

Pending

a

of
for

pretrial

Brunson claimed that

he was appearing as “Joseph Brunson, intervenor, here in the
matter for Joseph Brunson the defendant.”

Brunson also claimed

that he was appearing as intervenor “to assist the parties to
settle

all

claims

and

charges

outstanding

to

this

matter.”

Brunson also refused to come to the podium unless the district
court

acknowledged

that

he

was

“Joseph

Brunson,

intervenor.”

Like Brunson, McQueen and Pough claimed to appear at the hearing
as

“intervenors.”

Like

many

times

before,

the

Appellants

continued to press frivolous and nonsensical arguments.
also

insisted

counsel

and

that
settle

they
the

wanted
case

to

dismiss

their

“administratively.”

They

appointed
When

the

district court advised the Appellants that they needed to talk
with their appointed counsel if they were interested in plea
negotiations,

the

Appellants

stated

that

they

“would

conditionally accept [the] offer if [counsel was willing] to
accept all liability.”

The district court denied all of the

Appellants’ frivolous motions, as well as the request to relieve
appointed counsel.

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The

Appellants’

Pg: 15 of 26

disruptive

continued all the way to the trial.

and

obstructive

conduct

During a hearing on the day

of jury selection, Brunson repeatedly pressed nonsensical and
frivolous arguments, arguing that he was not a defendant in the
case and that the district court did not have jurisdiction.

At

one point during yet another challenge to the district court’s
jurisdiction, the district court observed that Brunson was “out
of

order.”

McQueen

and

Pough

joined

these

arguments,

which

ultimately were rejected by the district court.

B
The

Sixth

Amendment

guarantees

a

criminal

defendant

the right to “the Assistance of Counsel for his defence.”

U.S.

Const. amend. VI.

This right guarantees criminal defendants the

right

counsel

to

trial

representation.
(1975).

The

Faretta
right

of

and
v.

also

the

California,

right

422

self-representation

to

U.S.

self-

806,

generally

must

835
be

honored even if the district court believes that the defendant
would benefit from the advice of counsel.
The
absolute.”
“[T]he

trial

right

to

Indiana

v.

judge

may

Id. at 834.

self-representation,
Edwards,

554

terminate

U.S.

however,
164,

“is

171

self-representation

not

(2008).
by

a

defendant who deliberately engages in serious and obstructionist
misconduct.”

Faretta, 422 U.S. at 834 n.46.

15

“The right of

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self-representation is not a license to abuse the dignity of the
courtroom” or “a license not to comply with relevant rules of
procedural and substantive law.”

Id.; see also

United States

v. Frazier–El, 204 F.3d 553, 560 (4th Cir. 2000) (“The right [to
self-representation] does not exist . . . to be used as a tactic
for delay, for disruption, for distortion of the system, or for
manipulation of the trial process.”).
In
grounds

to

this
revoke

case,
the

the

Appellants’

full-time counsel for them.
receivership

case

as

district

well),

pro

court
se

had

status

sufficient
and

appoint

Throughout this case (and in the
the

Appellants

disrupted

the

proceedings, making it difficult, if not impossible, for the
district court to try the case without the appointment of fulltime counsel.
time

By the time the district court appointed full-

counsel

for

the

Appellants,

the

Appellants

had

filed

numerous nonsensical pro se motions, and the district court had
presided
forth

over

such

numerous

nonsensical

hearings

in

arguments.

which
From

the

Appellants

the

get-go,

put
the

Appellants refused to acknowledge that they were the defendants
named in the indictment, indicating instead that they were the
“intervenors.”

Under such circumstances, it was impossible for

the district court to conduct any type of meaningful dialogue
with

the

Appellants,

and,

without

such

dialogue,

impossible for the district court to try the case.
16

it

was

Moreover,

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after the district court’s January 2009 ruling, the Appellants
gave the district court no indication that they were willing to
stop their disruptive and obstructive conduct.

At the hearing

on the day of jury selection, the Appellants continued to claim
they were not defendants in the case and that the district court
did

not

have

before

it,

jurisdiction.

the

district

In

sum,

court

under

certainly

the

circumstances

acted

within

its

discretion when it appointed full-time counsel to thwart the
Appellants’ ongoing manipulative effort to delay and disrupt the
criminal trial.
In

the

alternative

to

their

argument

that

the

circumstances in January 2009 did not justify the appointment of
full-time
required

counsel,
to

appointment

wait
of

argument.

the

Appellants

until

the

full-time

Numerous

suggest

beginning

counsel

courts

the

of

government

trial

motion.

We

understandably

to

make

reject

have

was
the
this

permitted

district courts to revoke a defendant’s pro se status prior to
trial.

United States v. Mabie, 663 F.3d 322, 329 (8th Cir.

2011) (upholding the pretrial revocation of a defendant’s pro se
status); United States v. Mosley, 607 F.3d 555, 558-59 (8th Cir.
2010) (same).

To hold otherwise flies in the face of common

sense.

By the time of trial, the government has incurred the

expense

of

etc.),

and

bringing
it

would

the

case

to

materially
17

trial

(securing

prejudice

the

witnesses,

government

to

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require it to wait until the beginning of the trial to move for
the appointment of full-time counsel.

Moreover, requiring the

government to wait until the beginning of trial also places a
burden on the district court, which will in all likelihood have
to continue the trial to allow appointed counsel time to get
familiar with the case.
position

here

would

In short, embracing the Appellants’

permit

them,

and

similar

defendants,

to

distort the trial process in contravention to the admonition in
Frazier–El that the right of self-representation cannot be so
employed.

III
The

Appellants

also

challenge

the

district

court’s

decision to keep portions of the receivership case sealed during
their trial.

The Appellants do not allege that any particular

prejudice flowed from this district court action.

Rather, they

contend that the district court’s decision to keep portions of
the

receivership

case

sealed

during

the

trial

amounts

to

structural error requiring reversal.
In

support

of

their

structural

error

argument,

the

Appellants rely on Arizona v. Fulminante, 499 U.S. 279 (1991),
wherein

the

Court

noted

five

structural

errors

that

mandate

automatic reversal of a conviction: denial of counsel, trial by
a

biased

judge,

the

right

to
18

self-representation

at

trial,

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exclusion by race from a grand jury, and denial of a public
trial.

The five “structural errors” listed in Fulminante, as

well as a few others that have since been recognized, mandate
automatic reversal because such errors “call into question the
very accuracy and reliability of the trial process.”

McGurk v.

Stenberg, 163 F.3d 470, 474 (8th Cir. 1998).
The Appellants recognize that the error they allege
“does

not

fit

jurisprudence.”
suggest

the

neatly

into

Appellants’

manner

in

which

Supreme
Br.
the

at

Court
46.

district

structural

error

Nevertheless,

they

court

handled

the

receivership case implicates their Sixth Amendment right to a
public trial.

According to the Appellants, because portions of

the receivership case remained sealed, their trial was not a
public trial.
The Sixth Amendment guarantees a defendant the right
to a public trial.

U.S. Const. amend. VI; Presley v. Georgia,

130 S. Ct. 721, 724 (2010); Press–Enterprise Co. v. Superior
Court of Cal., 464 U.S. 501, 511 (1984).

This right is premised

on the notion that “‘judges, lawyers, witnesses, and jurors will
perform their respective functions more responsibly in an open
court than in secret proceedings.’”

Waller v. Georgia, 467 U.S.

39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S. 532, 588
(1965) (Harlan, J., concurring)).

The right “is for the benefit

of the accused; that the public may see he is fairly dealt with
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and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.”

Id.

at 46 (citations and internal quotation marks omitted); see also
In re Oliver, 333 U.S. 257, 270 (1948) (“The knowledge that
every criminal trial is subject to contemporaneous review in the
forum of public opinion is an effective restraint on possible
abuse of judicial power.”).
“The central aim of a criminal proceeding [is] to try
the accused fairly,” and the right to a public trial serves the
purpose of “ensuring that judge and prosecutor carry out their
duties

responsibly

.

.

.

,

encourag[ing]

forward[,] and discourag[ing] perjury.”

witnesses

to

come

Waller, 467 U.S. at 46.

Thus, “[t]he right to a public trial is not only to protect the
accused but to protect as much the public’s right to know what
goes on when men’s lives and liberty are at stake, for a secret
trial can result in favor to as well as unjust prosecution of a
defendant.”

Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965).

Here,
trial.

undeniably,

the

Appellants

enjoyed

a

public

There is no allegation that the courtroom was closed for

any meaningful duration, thus, it remained open to the public,
ensuring that the trial was subject to contemporaneous review in
the court of public opinion.

Cf. Press-Enterprise, 464 U.S. at

509 (noting that trial closures are to be “rare and only for
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cause shown that outweighs the value of openness”).

Moreover,

the fact that portions of the receivership case remained sealed
is of no moment.

The government did not use, at trial or at

sentencing, information contained in the receivership case or
information that was not previously disclosed to the Appellants.
Thus, the government’s evidence at trial was subject to scrutiny
through both cross-examination and assessment by the public at
large.

Cf. Waller, 467 U.S. at 46 (“[T]here can be little doubt

that the explicit Sixth Amendment right of the accused is no
less

protective

of

a

public

trial

than

the

Amendment right of the press and public.”).

implicit

First

Finally, from our

review of the record, it is clear that both the government and
the district court handled their respective duties fairly and
responsibly. 6

IV
The Appellants also challenge their sentences.

The

gist of their challenge is that the district court abused its
discretion when it refused to embrace their argument premised on
a policy disagreement with the Fraud Guideline.

6

The Appellants also argue that the district court violated
their right to due process under the Fifth Amendment when it
kept portions of the receivership case sealed during the course
of their trial.
We have reviewed this argument and find it to
be without merit.
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A
Prior

to

sentencing,

a

presentence

report (PSR) was prepared for each appellant.

investigation
The Guidelines

calculations in the PSRs were similar in all material aspects,
except

for

the

Criminal

History

Category.

Pough’s

Criminal

History Category was II, while Brunson’s and McQueen’s was I.
The total offense level for each appellant was 41, calculated as
follows.
was

7,

The base offense for the substantive mail fraud counts
United

States

(USSG) § 2B1.1(a)(1). 7

Sentencing

Commission

Guidelines

Manual

Twenty-four levels were added because the

loss exceeded $50,000,000.00 but was less than $100,000,000.00,
id. 2B1.1(b)(1)(M).

Six levels were added because the offense

involved more than 250 victims, id. 2B1.1(b)(2)(C).

Two levels

were added because the offense involved sophisticated means, id.
2B1.1(b)(9)(C), and two levels were added for obstruction of
justice, id. 3C1.1.
At
based

on

According

a
to

sentencing,
policy
the

the

Appellants

disagreement

Appellants,

with

Guideline

7

pressed
the

Fraud

an

sentences

argument

Guideline.
for

fraud

All of the counts of conviction were grouped pursuant to
USSG § 3D1.2(c), which deals with groups of closely-related
counts, because all of these counts were indeed closely related.
According to USSG § 3D1.3(a), when counts are grouped pursuant
to USSG § 3D1.2(a) through (c), the highest offense level of the
counts in the group is used. Here, the counts relating to mail
fraud produced the highest offense level and, therefore, were
used for total offense level calculation purposes.
22

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offenses
empirical

are

Filed: 06/06/2012

too

high,

data,

and

are

have

Pg: 23 of 26

not

based

been

on

past

increasingly

sentencing courts in high-loss fraud cases.

practice
rejected

or
by

The Appellants also

suggested that the Fraud Guideline has an excessive number of
enhancements,

many

of

which

are

overlapping

and

duplicative.

The district court filed a detailed sentencing memorandum for
each appellant explaining why, after consideration of the 18
U.S.C.

§ 3553(a)

factors,

a

sentence

Guidelines range was appropriate.

at

the

low-end

of

the

In particular, the district

court rejected the Appellants’ argument resting on their policy
disagreement

with

the

Fraud

Guideline,

holding

that

the

circumstances of each case did not warrant a sentence outside of
the Guidelines range.
press

their

On appeal, the Appellants continue to

policy-based

arguments

rejected

by

the

district

court below.

B
We review a sentence for reasonableness, applying the
abuse of discretion standard.
38, 51 (2007).

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of the sentence.

Id.

We assess whether the district court properly calculated the
advisory Guidelines range, considered the factors set forth in
18 U.S.C. § 3553(a), analyzed any arguments presented by the
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parties, and sufficiently explained the selected sentence.

Id.

at 49–50; United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir.
2010).

If

substantive
totality

there

is

no

reasonableness

of

the

procedural
of

the

circumstances

to

error,

sentence,
see

we

review

the

“examin[ing]

the

whether

the

sentencing

court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).”

United

States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
If

the

sentence

is

within

the

presumption of reasonableness.

Guidelines

range,

we

apply

a

Rita v. United States, 551 U.S.

338, 346–56 (2007) (upholding presumption of reasonableness for
within-Guidelines sentence).
In this case, the sentences imposed by the district
court are both procedurally and substantively reasonable.
respect

to

each

appellant,

the

district

court

With

properly

calculated the advisory Guidelines range, considered the factors
set

forth

presented

in
by

18
the

U.S.C.

§

parties,

3553(a),
and

analyzed

sufficiently

any

arguments

explained

selected sentence in detailed sentencing memorandums.

the

Moreover,

the totality of the circumstances demonstrate that the chosen
sentences

satisfied

the

standards

in

18

U.S.C.

§

3553(a).

Finally, with respect to the policy disagreement raised by the
Appellants, while it is true that a district court may vary from
Guidelines

ranges

based

solely
24

on

policy

considerations,

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including disagreements with the Guidelines, Kimbrough v. United
States, 552 U.S. 85, 101 (2007), it is equally true that a
district court is not required to do so.

See United States v.

Munjak, 669 F.3d 906, 907 (8th Cir. 2012) (“That a district
judge now may be permitted to deviate from the guidelines based
on

a

policy

disagreement

with

the

Sentencing

Commission,

however, does not mean that the judge is required to do so.”);
United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011)
(“[D]istrict courts are not obligated to vary from the child
pornography Guidelines on policy grounds if they do not have, in
fact,

a

policy

disagreement

Mondragon-Santiago,

564

F.3d

with

them.”);

357,

367

United

(5th

Cir.

States
2009)

v.

(“In

appropriate cases, district courts certainly may disagree with
the

Guidelines

accordingly.
decisions

for

policy

reasons

and

may

adjust

a

sentence

But if they do not, we will not second-guess their

under

a

more

lenient

standard

simply

because

the

particular Guideline is not empirically-based.”); United States
v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007) (noting that “a
sentence
district

is

court’s

[G]uideline
underlying

not

range
a

rendered
refusal
based

particular

on

unreasonable
to

deviate

disagreements

Guideline

within

its

discretion

when
25

because

from

the

with

provision.”)

internal quotation marks omitted).
acted

merely

the

of

a

advisory
policies

(citation

and

Here, the district court
it

declined

to

embrace

the

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policy disagreements raised by the Appellants.

V
For the reasons stated herein, the judgments of the
district court are affirmed.
AFFIRMED

26