US v. Sean Mescall

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00215-RJC-1 Copies to all parties and the district court/agency. [999717508].. [14-4881]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4881

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN F. MESCALL,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:12-cr-00215-RJC-1)

Submitted:

October 29, 2015

Decided:

December 14, 2015

Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

William Robert Terpening,
Carolina, for Appellant.
States Attorney, Anthony
Attorney, Charlotte, North

NEXSEN PRUET, PLLC, Charlotte, North
Jill Westmoreland Rose, Acting United
J. Enright, Assistant United States
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sean

F.

U.S.C. §§

Mescall

was

convicted

of:

securities

fraud,

15

78j(b), 78ff (2012), 17 C.F.R. § 240.10b-5 (2014);

wire fraud, 18 U.S.C. § 1343 (2012); and money laundering, 18
U.S.C.

§ 1956(a)(1)(B)(i)

(2012).

The

charges

related

to

Mescall’s operation of a Ponzi scheme through which he defrauded
victims of approximately $1.5 million.
months

in

prison

concurrently.

for

each

He was sentenced to 168

offense.

The

sentences

run

Mescall appeals, claiming that the prosecutions

violated the Double Jeopardy Clause.

We affirm.

I
On

September

9,

2009,

the

Commodities

Futures

Trading

Commission brought a civil action against Mescall, charging him
with operating the Ponzi scheme.

On September 16, 2009, the

district court issued a preliminary injunction forbidding the
movement of assets, appointing a receiver, and requiring Mescall
to

cooperate

fully

with

the

receiver.

Mescall

violated

the

preliminary injunction, and the court found him in contempt.
The

court

stayed

imposition

of

civil

contempt

sanctions

and

referred the matter to the U.S. Attorney for possible criminal
contempt proceedings.

Mescall was charged with and convicted of

criminal contempt, in violation of 18 U.S.C. § 401(3) (2012).
Mescall
wire

fraud,

subsequently
and

money

was

indicted

laundering.
2

The

for

securities

charges

fraud,

pertained

to

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Mescall’s operation of the Ponzi scheme.

Following a trial,

Mescall was convicted on all counts.
II
Mescall contends that the instant convictions were for the
same

conduct

as

the

criminal

contempt

conviction

and

thus

obtained in violation of the Double Jeopardy Clause, U.S. Const.
amend.

V.

The

Double

Jeopardy

Clause

forbids

“successive

prosecutions for the same offense as well as the imposition of
cumulative punishments for the same offense in a single criminal
trial.”

United States v. Shrader, 675 F.3d 300, 313 (4th Cir.

2012) (internal quotation marks omitted).

Under Blockburger v.

United States, 284 U.S. 299 (1932), “successive prosecutions do
not violate the Double Jeopardy Clause if each offense contains
an element not contained in the other.”
551

F.3d

257,

267

(4th

Cir.

2009)

United States v. Hall,

(internal

quotation

marks

omitted).
Here,
conclusion

application
that

of

there

the

was

Blockburger

no

double

test

compels

jeopardy

the

violation.

Criminal contempt has as an element the willful violation of a
court order, United States v. Allen, 587 F.3d 246, 255 (5th Cir.
2009), while

the

other

offenses

do

not.

Additionally,

wire

fraud contains an element — use of a wire communication, United
States

v.

criminal

Wynn,
contempt

684

F.3d

does

473,

not;

477

(4th

securities
3

Cir.
fraud

2012)

—

contains

that
an

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element — engaging in fraud in connection with the purchase or
sale of a security, 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5 —
that criminal contempt does not; and money laundering contains
an

element

—

a

financial

transaction

designed

to

conceal

proceeds of an unlawful activity, United States v. Cone, 714
F.3d 197, 214 (4th Cir. 2013) — that criminal contempt does not.
We conclude that there was no double jeopardy violation.
III
We

therefore

affirm.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the
decisional process.
AFFIRMED

4