US v. William Bill Adams, Jr.


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00044-JPJ-PMS-1 Copies to all parties and the district court/agency. [999729817].. [15-4136, 15-4137]

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Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 1 of 15 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4136 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM BILL F. ADAMS, William F. Adams, JR., a/k/a Defendant – Appellant, and TOMMY SKEENS; JERRY SKEENS, Petitioners. No. 15-4137 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN B. WARD, Defendant – Appellant, and TOMMY SKEENS; JERRY SKEENS, Petitioners. Bill F. Adams, a/k/a Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 2 of 15 Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:12-cr-00044-JPJ-PMS-1; 1:12-cr-00044-JPJ-PMS-5) Submitted: December 22, 2015 Decided: January 5, 2016 Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Timothy J. LaFon, CICCARELLO, DEL GIUDICE & LaFON, Charleston, West Virginia; Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for Appellants. Anthony P. Giorno, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 3 of 15 PER CURIAM: In these consolidated appeals, William “Bill” F. Adams and John B. Ward appeal their convictions for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (2012), and structuring of currency transactions to evade reporting requirements, in violation of 31 U.S.C. § 5324 (a)(3) (2012), contending the convictions. Government presented evidence was Additionally, insufficient did not evidence prove of Adams a and single multiple to Ward sustain claim conspiracy, that but conspiracies. their the actually Adams also challenges the district court’s rulings on evidentiary matters and the Government’s challenges his use of conviction on leading the questions. basis that Ward the also financial structuring committed by his coconspirators was not reasonably foreseeable to hold him criminally liable under the Pinkerton * doctrine. We affirm. I. A jury convicted Adams and Ward of conspiring to defraud the United States and of multiple counts of structuring currency transactions * to evade reporting requirements. The Pinkerton v. United States, 328 U.S. 640 (1946). 3 district Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 4 of 15 court sentenced Adams and Ward to a 36-month prison term for each offense, running concurrently. These involved crimes coal arose mining out of companies a check-cashing and mine scheme supply that businesses located in Virginia and West Virginia. Under this scheme, mine suppliers provided false invoices to certain mining companies, and the companies paid the suppliers with a check. In return, the mine suppliers paid ninety percent of the check amount in cash to the mining company, keeping ten percent as its fee. This scheme allowed the mining companies and their owners to avoid payment of income tax on the cash received and benefit from fictitious business tax deductions. At the end of the Government’s case in chief and at the end of the trial, Adams and Ward moved the district court for a judgment of Procedure 29. acquittal pursuant to Federal Rule of Criminal Adams and Ward also moved the district court for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing the evidence presented at trial supported multiple conspiracies (rather than the charged single conspiracy) and was highly prejudicial, the Government improperly presented its case with leading questions, the district court erred when it limited the testimony of Adams’ expert witness, and sufficient evidence to support the verdicts. 4 the case lacked Finding sufficient Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 5 of 15 evidence for the convictions and no error, the court denied the motions. II. A. Sufficient evidence supports structuring convictions the conspiracy and We review de novo the denial of Adams’ motion for judgment of acquittal. Cir. 2010). the United States v. Green, 599 F.3d 360, 367 (4th Viewing the evidence in the light most favorable to Government, we must determine whether the conviction is supported by “substantial evidence,” where “substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010). Substantial evidence supports the jury’s finding that Adams and Ward participated in the conspiracy alleged in Count I of the superseding indictment. To establish a conspiracy under § 371, the Government must prove (1) an agreement between two or more people to commit a crime, furtherance of the conspiracy. 197, 213 (4th Cir. 2013). and (2) an overt act in United States v. Cone, 714 F.3d A single conspiracy exists where there is one overall agreement, or one general business venture. United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). government can prove a single 5 conspiracy by direct The or Appeal: 15-4136 Doc: 51 circumstantial object” by Filed: 01/05/2016 evidence that demonstrating a Pg: 6 of 15 a defendant “tacit or knew mutual its “essential understanding” between the defendants and other conspirators, even where the connection is slight. United States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011). In this case, the evidence supports a single conspiracy — to defraud the United States – through the agreement made among Ward, Adams, and others, and their numerous overt acts involving various cash transactions. establish a single The Government presented evidence to conspiracy among bookkeepers, coal mine operators, and sellers of cash located on and around the border of West Virginia and Virginia. The conspirators, including Adams and Ward, worked together to ensure that the coal mine operators maintained a large supply of cash to conduct business in such a way as to avoid taxes, to create paperwork to hide the movement of untaxed cash through their businesses, and to make sure their scheme went undetected. To prove this conspiracy charge, the Government presented substantial written evidence in the form of handwritten notes on timesheets, the general ledgers of three mining companies affiliated with Adams and Ward, invoices, and records of the checks to pay those invoices. The Government also presented its case through the testimony of numerous witnesses who spoke about 6 Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 7 of 15 Ward’s and Adams’ working relationship, and their connection to the cash suppliers involved in the conspiracy. The district court also instructed the jury on a multipleconspiracy argument theory that of they defense were, uncharged conspiracies. existence of multiple, overarching conspiracy. to at The support most, jury separate members thus at trial of could conspiracies and Ward’s separate have found instead of and the one Nevertheless, the jury found Adams and Ward guilty of the conspiracy charge. presented Adams’ supports a Accordingly, the evidence single conspiracy, and the district court did not err in denying the motions for judgment of acquittal or new trial. Substantial evidence also supports the jury’s finding that Adams and reporting Ward structured requirements. currency Pursuant to transactions 31 U.S.C. § to evade 5324(a), a person is not permitted to structure currency transactions in such a way to avoid federal reporting requirements. The government must prove three elements to support a conviction for this type of structuring: (1) the defendant knowingly engaged in structuring; (2) requirements under the defendant federal law; and knew of (3) the transaction was to evade the requirements. the reporting purpose of the United States v. $79,650.00 Seized from Bank of Am. Account Ending in 8247 at Bank of Am., 7400 Little River Tpk., Annandale, Va., 650 F.3d 7 Appeal: 15-4136 381, Doc: 51 384 Filed: 01/05/2016 (4th instructions of Cir. the 2011) trial Pg: 8 of 15 (citing judge); without see also criticism United States the v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005). The aiding and abetting statute, which is also referenced in the structuring offense against counts, the provides United States “[w]hoever or aids, commits abets, an counsels, commands, induces or procures its commission, is punishable as a principal,” and “[w]hoever willfully causes an act to be done which if offense directly against principal.” did not performed the by United him States, 18 U.S.C. § 2 (2012). make the structured or another be an punishable is would as a Thus, even if Adams and Ward withdrawals of cash themselves, getting the cash providers to do so for them makes them equally as culpable. The record makes clear that the Government offered sufficient evidence at trial from which a reasonable juror could have found Adams and Ward guilty of structuring. First, Adams and Ward routinely obtained cash in an amount of $10,000 or less. and Second, after the bank submitted one CTR each for Adams Ward, they kept their transactions under $10,000. Two cooperating witnesses involved in the scheme testified that they purchased cash in order to avoid paying taxes and triggering bank reporting requirements. From this evidence, the jury could infer Adams and Ward knew about the reporting requirements and 8 Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 sought to avoid them. Pg: 9 of 15 Moreover, the attempt to hide illegal activity is itself evidence that they knew their conduct was illegal. United States v. Beidler, 110 F.3d 1064, 1069 (4th Cir. 1997). Finally, the third element—that the purpose of the transactions established element. was by to the avoid same the evidence reporting that requirement—is satisfied Beidler, 110 F.3d at 1068-69. the second Adams and Ward could have withdrawn cash in amounts greater than $10,000, but they instead chose to go through the cash providers. The record therefore contains sufficient evidence to uphold the structuring convictions. B. The district court did not abuse its discretion when ruling on evidentiary matters or leading questions “This Court discretion.” reviews evidentiary rulings for abuse of United States v. Hill, 322 F.3d 301, 304 (4th Cir. 2003). Federal Rule of Evidence 404(b) prohibits using evidence of a crime, wrong, or other act “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Adams’ argument concerning alleged Rule 404(b) evidence relates to his argument that the Government evidence of multiple conspiracies. that the Government’s Rule 404(b) 9 improperly presented Specifically, Adams argues Notice “shows that the Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 10 of 15 presentation of evidence . . . as to his personally structured transactions . . . was a separate crime.” Because Rule 404(b) applies to other crimes, wrongs, or acts, it does not apply if the proponent offers evidence of the charged act itself. (4th Cir. United States v. Lighty, 616 F.3d 321, 352 2010). Here, the Government offered evidence of Adams’ structured transactions and cash wages, not evidence of “other crimes.” These acts were intrinsic to the conspiracy charge and the structuring counts. Indeed, the district court and counsel briefly discussed this issue when preparing jury instructions, and no one objected to removing the Rule 404(b) instruction. Rule 404(b) thus does not extend to these intrinsic acts, which are not “other acts” and were not offered to prove Adams’ propensity to commit the charged offenses. As a result, the district court did not abuse its discretion or err when it admitted this evidence. Adams limited also contends testimony accountant, because by the Dr. Federal district Robert Rule court Rufus, of a Evidence erred when certified 702 it public allows for testimony by a person who is an “expert by knowledge, skill, experience, training or education” as long as “the testimony is based on sufficient facts or data.” Adams further contends the only prohibition on expert testimony in criminal cases is that “an expert witness must not state an opinion about whether the 10 Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 11 of 15 defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Fed. R. Evid. 704(b). Because Rufus did not plan to testify as to the mental state or condition of the defendant, Adams argues his testimony should not have been limited. that Rufus’ testimony would have Adams also argues impeached Kermit Wiley, a mining company supplier who testified to his provision of false invoices for companies and other involvement in the conspiracy, and the denial of that testimony prejudiced Adams and constituted clear error. A review of the record shows the district court properly excluded the chart and potential accordance with Rule 1006. corresponding testimony in The Rule states, in relevant part, “The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” 1006. Fed. R. Evid. Thus, Rule 1006 permits the admission of charts into evidence as a surrogate for underlying voluminous records that would otherwise be admissible into evidence. United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). Here, the district court summarize voluminous records. found that the chart did not Additionally, the chart focused on a Memorandum of Interview documenting certain out-of-court statements made by Kermit Wiley. 11 At no point during his Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 12 of 15 testimony, however, did Wiley discuss the details set forth in that Memorandum. Thus, the chart relied on inadmissible evidence. The district court also concluded that the chart and proposed testimony did not amount to “expert” opinion evidence. The district court surmised that Rufus intended to recount inadmissible testimony of another witness for the purpose of impeaching that witness’ testimony. opinion based on otherwise purposes of Rule 703. This is not an “expert” inadmissible facts or data for See United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (“It is nonetheless appropriate for district courts to recognize the risk that a particular expert might become nothing more than a transmitter of testimonial hearsay and exercise their discretion in a manner to avoid such abuses.”). Therefore, the district court did not abuse its discretion when it excluded Rufus’ chart summarizing the Kermit Wiley Transactions. This court reviews rulings on the use of leading questions for an abuse of discretion. 590, 592 (4th Cir. 1963). United States v. Durham, 319 F.2d “Generally, abuse of discretion is not found in the absence of prejudice or clear injustice to the defendant.” Id. Adams argues the “large number of leading questions . . . substantially affected [his rights] 12 and the same constitutes Appeal: 15-4136 clear Doc: 51 and Filed: 01/05/2016 prejudicial Pg: 13 of 15 error.” Adams does not identify individual questions or objections that he disputes. any Rather, his argument seems to be that taken altogether, the Government presented its case through leading questions “without actually getting any substantive testimony from the witnesses.” Nevertheless, a review of the record shows that during the Government’s objections case to in leading chief, Adams’ questions, counsel some of made which numerous the district court sustained, and some of which the court overruled. has not occurred explained, or how nor the does the district ruling on these objections. record court show, abused how its Adams prejudice discretion in Accordingly, the district court did not abuse its discretion in ruling on the objections, nor did its rulings result in prejudice to Adams. C. The coconspirators’ financial structuring was reasonably foreseeable to hold Ward accountable under the Pinkerton doctrine. The Pinkerton doctrine imposes vicarious liability on a coconspirator for the substantive offenses committed by other members of the conspiracy when the offenses are during and in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646–47 (1946); see also Nye & Nissen v. United States, 336 U.S. 613, 618 (1949) (stating Pinkerton “held that a conspirator could be held guilty of the substantive offense even though he did no more than join the conspiracy, provided that 13 Appeal: 15-4136 the Doc: 51 substantive conspiracy and Filed: 01/05/2016 offense as a was part Pg: 14 of 15 committed of it”); in furtherance accord United of the States v. Chorman, 910 F.2d 102, 110 (4th Cir. 1990). Ward argues there “is no evidence that Ward himself engaged in any structured withdrawal transaction,” and “there is not evidence that Ward was aware that cash withdrawals over $10,000 had to be reported.” Ward’s argument is without merit. In this case, a significant portion of the conspiracy involved purchasing large amounts of cash and falsified invoices to hide the movement of cash. Therefore, it was reasonably foreseeable that the cash sellers would undertake methods to avoid detection when acquiring the cash. Furthermore, in accordance with Pinkerton, the jury could have convicted Ward and Adams based solely on the substantive structuring offenses committed by their coconspirators in the course of and in furtherance of the conspiracy. The district court properly instructed the jury on this issue. Cooperating witnesses who pleaded guilty to participation in the conspiracy testified that they had structured cash out of financial institutions to avoid reporting requirements, and that they sold this structured cash to Adams and Ward. Whether Adams or Ward personally made the withdrawals is irrelevant. sufficient that Ward used the 14 structured The evidence is cash to further a Appeal: 15-4136 Doc: 51 Filed: 01/05/2016 Pg: 15 of 15 conspiracy and defraud the United States, and the possibility that cash providers might have structured the cash that they were selling to Ward and Adams was reasonably foreseeable. III. Viewing the evidence in the light most favorable to the Government, we conclude that a rational jury certainly could have found substantial evidence beyond a reasonable doubt to convict Adams and Ward of conspiracy to defraud the United States, and for the substantive counts of structuring currency transactions to evade reporting requirements. We further conclude that the district court did not abuse its discretion or violate Federal Rule of Evidence 404(b) evidence intrinsic to these crimes. when it admitted Similarly, the district court did not abuse its discretion when it excluded a chart and limited the testimony of Dr. Robert Rufus regarding certain transactions and inadmissible evidence, nor did it abuse its discretion when it ruled on objections to leading questions. Accordingly, we affirm the district court’s judgments. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 15

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