US v. Dennis Paulsen


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00286-MBS-1 Copies to all parties and the district court/agency. [1000058609].. [16-4286]

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Appeal: 16-4286 Doc: 46 Filed: 04/10/2017 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4286 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS OWEN PAULSEN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, Senior District Judge. (3:15-cr-00286-MBS-1) Submitted: March 27, 2017 Decided: April 10, 2017 Before MOTZ, KING, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. G. Wells Dickson, Jr., WELLS DICKSON, P.A., Kingstree, South Carolina, for Appellant. William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4286 Doc: 46 Filed: 04/10/2017 Pg: 2 of 7 PER CURIAM: Dennis sentence Owen imposed Paulsen after appeals his his jury conviction trial for and 41-month knowingly and willfully stealing money from the Department of Veterans Affairs and the Social Security Administration by accepting payments to which he knew he had no entitlement, in violation of 18 U.S.C. § 641 (2012). On appeal, Paulsen’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that he found no meritorious issues for appeal but questioning six aspects of the proceedings below. Paulsen filed a supplemental pro se brief expanding on some of the issues raised by counsel. The Government elected not to respond. Taking each of the six issues in turn, we conclude that the district court did not commit any reversible errors and affirm. First, Paulsen raises as an affirmative defense the fiveyear statute of limitations for violations of 18 U.S.C. § 641. Because Paulsen engaged in “a recurring, automatic scheme of embezzlement” from 1997 to 2015, his offense must be treated as a continuing one for which the during the pendency of the scheme. statute of limitations tolls See United States v. Smith, 373 F.3d 561, 564, 567 (4th Cir. 2004). Thus, although the grand jury did not indict Paulsen until 2015, the statute of limitations does not bar any part of the scheme. 2 Appeal: 16-4286 Doc: 46 Filed: 04/10/2017 Pg: 3 of 7 Second, Paulsen argues that the district court erred when it denied his motion to dismiss for lack of venue. We review a district court’s denial of a motion to dismiss for lack of venue de novo. 2012). United States v. Engle, 676 F.3d 405, 412 (4th Cir. “[A]ny offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was U.S.C. § 3237(a) (2012). begun, continued, or completed.” 18 Here, Paulsen started the offense in a district in Virginia, but completed it in the District of South Carolina. Thus, under § 3237, the district court did not err when it denied Paulsen’s motion to dismiss based on lack of venue. Third, Paulsen challenges the district court’s limits on the cross-examination of three prosecution witnesses. such limits for abuse of discretion. 451 F.3d 209, 220 (4th Cir. We review United States v. Smith, 2006). The district court “possesses wide latitude to impose reasonable limits on crossexamination, premised on such concerns as prejudice, confusion, repetition, and relevance.” Id. at 221. Here, the district court acted within its discretion to limit cross-examination on topics such as an unrelated divorce, administrative hearing, and income. Thus, we conclude that the district court did not abuse its discretion. 3 Appeal: 16-4286 Doc: 46 Filed: 04/10/2017 Pg: 4 of 7 Fourth, Paulsen argues that the district court should have given four refusal jury to instructions. give particular We jury review a district instructions for court’s abuse of discretion. United States v. Shrader, 675 F.3d 300, 308 (4th Cir. 2012). We will reverse on this basis only if the omitted instruction was “(1) correct; (2) not substantially covered by the court’s charge; and (3) dealing with some point in the trial so important, that failure to give the requested instruction seriously impaired defense.” Id. the defendant’s Paulsen ability requested to conduct instructions on his the requirements for disability, but no party disputed that Paulsen had some disability from 1997 to 2015. court found, received the issue greater warranted. at trial disability Instead, as the district concerned benefits whether than his Paulsen condition Because the charges regarding disability did not affect an issue important, or even relevant, to the trial, we conclude error. that the district court did not commit reversible See id. Fifth, Paulsen claims that the evidence is insufficient to support the jury’s verdict. We review de novo the sufficiency of a the evidence Barefoot, 754 challenging supporting F.3d 226, evidentiary 233 conviction. (4th sufficiency Cir. United 2014). bears a States A heavy defendant burden. United States v. Cornell, 780 F.3d 616, 630 (4th Cir. 2015). 4 v. We Appeal: 16-4286 Doc: 46 Filed: 04/10/2017 Pg: 5 of 7 will “uphold a defendant’s conviction if, viewing the evidence in the light most favorable to the government, there substantial evidence in the record to support the verdict.” is Id. (internal quotation marks omitted). Substantial evidence means “evidence of that a reasonable finder fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). Under § 641, the Government had to prove four elements: (1) Paulsen took money; (2) the money came from the United States; (3) Paulsen intended to convert the money for his own use or gain; and (4) Paulsen knew he was not entitled to the money. 18 U.S.C. § 641. Paulsen Government failed to prove intent. only argues that the However, the inconsistencies between Paulsen’s conduct at medical appointments or benefits hearings and all factfinder to reasonable doubt. other conclude See times that would Paulsen Cornell, 780 permit was F.3d a reasonable guilty at 630. beyond Such a a factfinder could also conclude from the record that Paulsen’s entrapment defense lacked merit. Thus, the jury had sufficient evidence to support its guilty verdict. Finally, Paulsen argues that the district court imposed an unreasonable sentence. We review sentences for reasonableness, applying “a deferential abuse-of-discretion standard.” 5 Gall v. Appeal: 16-4286 United Doc: 46 Filed: 04/10/2017 States, procedural and 552 U.S. 38, substantive Pg: 6 of 7 51 (2007). Reasonableness components. Id. In has assessing procedural reasonableness, we consider factors such as whether the district court properly calculated the Sentencing Guidelines range, considered the 18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the sentence imposed. Id. If no significant procedural errors exist, we consider the substantive reasonableness totality the of sentences of a circumstances.” within the sentence, Id. Guidelines We evaluating “the presume United range. reasonable States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Applying this standard, we conclude that the district court imposed a reasonable sentence. sentencing errors, and the The record reveals no procedural court imposed a within-Guidelines sentence, which we presume reasonable absent a rebuttal of that presumption. In See Louthian, 756 F.3d at 306. accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Paulsen, in writing, of the right to petition the Supreme Court of the United States for further review. If Paulsen 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 6 Appeal: 16-4286 Doc: 46 representation. Filed: 04/10/2017 Pg: 7 of 7 Counsel’s motion must state that a copy thereof was served on Paulsen. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 7

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