United States v. Donald Howard Conkright

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 11, 2021
• Docket: 20-12104
• Status: Unpublished

Opinion

USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12104 Non-Argument Calendar ________________________

D.C. Docket No. 4:19-cr-10017-KMM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONALD HOWARD CONKRIGHT,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 11, 2021)

Before JILL PRYOR, LAGOA and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 2 of 11

Donald Conkright appeals his convictions and sentence for conspiracy to

commit money laundering and money laundering. After careful review, we affirm.

I.

Conkright was one of several co-conspirators who defrauded a Texas school

district. The school district contracted with a construction company to, among

other things, build a new elementary school. A group of co-conspirators

impersonated a senior employee of the construction company and convinced the

school district to wire the co-defendants almost $2 million in payments intended as

compensation for construction work. The wires were sent to a bank account in

Conkright’s name. Upon receipt of the funds, Conkright immediately began

spending, withdrawing, and transferring the money.

A grand jury indicted Conkright on one count of conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h); one count of money

laundering by concealment, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and two

counts of money laundering by engaging in transactions derived from a criminal

activity, in violation of 18 U.S.C. § 1957. Conkright pled not guilty and proceeded

to a jury trial. His defense, which is relevant to this appeal, was that he was one of

several suitors (his co-conspirators) for a woman who purported to be an heiress to

a fortune and whose money was handled by a trust that had global business

interests. Conkright maintained that he believed he was managing the heiress’s

2 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 3 of 11

money when he committed the offense conduct and therefore did not knowingly

commit any crime.

Before trial, Conkright notified the district court that he intended to call an

expert witness to testify about his mental condition at the time of the offenses. The

government filed a motion to exclude the expert’s testimony under Rules 403 and

704 of the Federal Rules of Evidence. The government argued that the expert’s

testimony was “likely to be classic justification and mitigation evidence, not true

lack-of-mens-rea evidence.” Doc. 26 at 8.1 The government also filed a motion to

exclude certain voicemail messages between Conkright’s co-conspirators and

unindicted third parties, arguing that they were irrelevant and may confuse the

jury, in violation of Rules 401, 402, and 403 of the Federal Rules of Evidence.

Conkright responded in opposition to the government’s motions. As to his

proposed expert testimony, Conkright argued that his expert would in fact testify

that he lacked the requisite mens rea. As to the voicemail messages, he argued that

they provided “extremely relevant” context to his defense, would not confuse the

jury, and were “inextricably intertwined with the other phone calls and voicemail

evidence” in the case. Doc. 34 at 2, 4 (internal quotation marks omitted).

Conkright did not argue that exclusion of the expert’s testimony or the voicemail

messages would be unconstitutional.

1 “Doc.” numbers refer to the district court’s docket entries.

3 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 4 of 11

A magistrate judge denied without prejudice both motions in all respects

relevant to this appeal, concluding that the motions were better decided in the

context of trial. At trial, Conkright proffered what the expert would testify to, and

the district court asked the expert to testify outside the jury’s presence. The expert

testified that Conkright’s personal history and mental health challenges made him

more susceptible to being manipulated into participating in conspiracies. The

government renewed its objections, and Conkright renewed his arguments in

support of permitting the expert to testify. Again, Conkright did not argue that

excluding the expert’s testimony would be unconstitutional. Reasoning that the

evidence had the potential to confuse the jury, the district court granted the

government’s motion and excluded the expert’s testimony.

When the issue of the voicemail messages came up at trial, Conkright

renewed his argument that messages between co-conspirators and unindicted third

parties contextualized the offenses for which he was charged. He did not argue

that exclusion of the messages would violate the Constitution. The district court

excluded the voicemail messages except to the extent they directly involved

Conkright.

Conkright testified in his defense. He testified that he developed a

relationship with a woman named Lola Mullins online and that, after a year of

communicating, she told him she would receive a large inheritance if she got

4 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 5 of 11

married. He testified that Mullins told him that the money was held in a trust and

tied up in one or more businesses. He testified that he was going to be named

“acting CEO and pay the existing trust bills off to bring the company back up to

zero account,” at which point he and Mullins would marry and get the inheritance.

Doc. 94 at 16. The alleged trustee, David Sanders, instructed Conkright to open

several bank accounts “[t]o help pay off the bills.” Id. at 18.

Conkright testified that he did these things to be with Mullins, but that he

thought the “whole time” that he may have been money laundering and told his co-

conspirators that what they were doing “look[ed] like fraud.” Id. at 53, 58. He

acknowledged sending text messages to Lola telling her that he would “do jail time

on this, bad checks and money laundering,” and that he had “already broken the

law.” Id. at 56. And he acknowledged making extravagant purchases with the

money in his bank accounts, including Rolex watches and a BMW car.

The jury found Conkright guilty on all counts. In anticipation of sentencing,

the probation office prepared a presentence investigation report (“PSR”). As

relevant to this appeal, the PSR applied a two-level increase to his base offense

level for an offense involving sophisticated laundering. See U.S.S.G.

§ 2S1.1(b)(3). Based on a total offense level of 27 and a criminal history category

of I, the PSR calculated Conkright’s guidelines range as 70 to 87 months’

imprisonment.

5 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 6 of 11

Conkright objected to the sophisticated laundering enhancement, arguing

that his personal participation was not sufficiently sophisticated. The district court

overruled his objection and applied the enhancement. The government

recommended a sentence of 71 months’ imprisonment, representing that it was the

“high end of the sentencing range if the sophisticated [laundering] enhancement

did not apply.” Doc. 90 at 34. After considering the sentencing factors set forth in

18 U.S.C. § 2553(a), the district court accepted the government’s recommendation,

“stat[ing] for the record that in the event that the special enhancement did not

apply, [the court] would have applied the same sentence that [it] intend[ed] to

impose today, in any event.” Id. at 35.

This is Conkright’s appeal.

II.

Generally we review de novo questions of constitutional law, but we review

such a question only for plain error when a party raises it for the first time on

appeal. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). Plain error

requires: (1) an error; (2) that was plain; (3) that affected the defendant’s

substantial rights; and (4) that seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Id. A plain error affects a defendant’s

substantial rights if he can show a reasonable probability that, but for the error, the

outcome of the proceeding would have been different. United States v. Reed, 941

6 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 7 of 11

F.3d 1018, 1021 (11th Cir. 2019). We consider the entire record when determining

whether an error was plain. Id. When a defendant cannot meet one plain-error

prong, we need not reach the other prongs. United States v. Carpenter, 803

F.3d 1224, 1238-39 (11th Cir. 2015).

We review the district court’s application of the Sentencing Guidelines de

novo. United States v. Newman, 614 F.3d 1232, 1235 (11th Cir. 2010). An error

in the district court’s calculation of a defendant’s guidelines range is reversible

absent harmless error. United States v. Scott, 441 F.3d 1322, 1329–30 (11th Cir.

2006). An error in calculating a defendant’s guidelines range is harmless if the

district court stated on the record that it would impose the same sentence even if it

decided guidelines calculation issues in the defendant’s favor and, assuming the

lower range applied, the final sentence was reasonable taking into account the

factors set forth in 18 U.S.C. § 3553(a). 2 See United States v. Keene, 470 F.3d

1347, 1349 (11th Cir. 2006).

III.

Conkright challenges his convictions, arguing that the district court’s

exclusion of expert testimony regarding his mental health and of voicemail

messages between co-conspirators and unindicted third parties violated his right to

a fair trial in violation of the Fifth and Sixth Amendments. He also challenges his

2 See infra Part III.B.

7 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 8 of 11

sentence, arguing that the district court reversibly erred in applying the

sophisticated laundering enhancement under U.S.S.G. § 2S1.1(b)(3). For the

reasons that follow, we disagree.

A. Conkright’s Convictions

Conkright argues that the expert testimony and voicemail messages would

have negated the requisite mens rea for his offenses, and that the district court’s

decision to exclude the evidence deprived him of the opportunity to present such

evidence in violation of the Fifth and Sixth Amendments. 3 Conkright did not

advance this challenge in the district court, so we review only for plain error.

Nash, 438 F.3d at 1304.

The Sixth Amendment guarantees defendants the right to have compulsory

process for obtaining witnesses in their favor. U.S. Const. amend. VI. “Implicit in

this right—as well as in the basic notion of due process of law in general . . . —is

the idea that criminal defendants must be afforded the opportunity to present

evidence in their favor.” United States v. Hurn, 368 F.3d 1359, 1363 (11th Cir.

2004) (citing U.S. Const. amend. V) (internal quotation marks omitted). A

defendant does not receive a fair trial if the evidence excluded is “material in the

3 Conkright also argues, for the first time in his reply brief, that the district court abused its discretion in its analysis under the Federal Rules of Evidence. Issues raised for the first time in a reply brief are, however, waived. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004). We therefore do not address this argument.

8 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 9 of 11

sense of a crucial, critical, highly significant factor.” Id.

Even assuming Conkright could show that the district court erred, and that

the error was plain, he cannot show that it affected his substantial rights.

Conkright testified that he believed he was laundering money, and the jury was

permitted to infer his mens rea from his testimony. See Reed, 941 F.3d at 1021

(“[T]he jury could have inferred that Reed knew he was a felon from his

stipulation and from his testimony that he knew he was not supposed to have a

gun.”). Thus, Conkright cannot show any reversible error as regards his

convictions, and we affirm them.

B. Conkright’s Sentence

Conkright argues that the district court erred in applying the sophisticated

laundering enhancement, explaining that he acted at the direction of others, never

solicited funds by using a fraudulent email or name, and “never set up any kind of

shell company to hide what was going on.” Appellant Br. at 37. “He simply

opened bank accounts in his own name” and then made withdrawals and

purchases, all as directed by Mullins and Sanders. Id. However, Conkright does

not acknowledge in his brief the district court’s express statement that it would

have imposed a 71-month sentence even in the absence of the challenged

enhancement. Under these circumstances, we will affirm the sentence, provided it

would have been reasonable under the more-favorable guidelines calculation.

9 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 10 of 11

Keene, 470 F.3d at 1349. Our task is to determine whether the court’s sentence

was reasonable. 4 For that inquiry we “assum[e] exactly the same conduct and

other factors in the case, but us[e] an advisory range” that would have applied had

the district court decided the contested issue in the defendant’s favor. Id. at 1349–

50.

We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard, United States v. Irey, 612 F.3d 1160, 1186 (11th Cir.

2010) (en banc), and examine the sentence’s reasonableness under the totality of

the circumstances, United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).

The district court is required to impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2), including the need

to reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a

particular sentence, the court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guidelines range, the pertinent policy statements of the

4 Conkright arguably has waived any potential argument that his sentence was unreasonable by failing to argue its reasonableness on appeal. See United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004). As we explain above, however, Conkright’s challenge fails on the merits. 10 USCA11 Case: 20-12104 Date Filed: 08/11/2021 Page: 11 of 11

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).

Even if the district court had used Conkright’s preferred guidelines range as

the lodestar for sentencing, the resulting sentence of 71 months’ imprisonment—a

within-guidelines sentence—would have been within the district court’s discretion

to impose. The district court weighed on the one hand Conkright’s “history and

characteristics,” explaining that he had dome “some good things,” including caring

for neighbors and friends. Doc. 90 at 26–27. On the other hand, the court weighed

“the harm that he caused” to the school district—a loss amount equal to 36

teachers’ salaries or “feeding 16,000 students 798,286 lunches.” Id. at 27–28.

Given that the district court carefully weighed the § 3553(a) factors to arrive at a

sentence that was within the more favorable guidelines calculation, the sentence

the court imposed was reasonable. Thus, any error in the guidelines calculation

was harmless, and we affirm Conkright’s sentence.

IV.

For the foregoing reasons, we affirm Conkright’s convictions and sentence.

AFFIRMED.