United States v. Michael Marshall

663 F. App'x 275
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 13, 2016
Docket15-4449
StatusUnpublished

This text of 663 F. App'x 275 (United States v. Michael Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Marshall, 663 F. App'x 275 (4th Cir. 2016).

Opinion

PER CURIAM:

Michael A. Marshall was convicted after a jury trial of conspiracy to commit of- ' fenses against the United States, including wire fraud,- bank fraud, and making false statements to financial institutions, in vio *276 lation of 18 U.S.C. § 371 (2012) (count 1), bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2, 1344 (2012) (count 2), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (2012). The district court sentenced Marshall to 60 months’ imprisonment on count 1 and concurrent terms of 96 months’ imprisonment on each of counts 2 and 3. Marshall now appeals. On appeal, he challenges the district court’s denial of his Fed. R. Crim. P. 29 motion for judgment of acquittal on the basis of insufficient evidence, the district court’s instructions to the jury on count 1, and the district court’s calculation of the loss amount under U.S. Sentencing Guidelines Manual § 2B1.1 (2014). We affirm.

We review a challenge to the sufficiency of the evidence de novo and must affirm the jury’s verdict if it is supported by substantial evidence, viewed in the light most favorable to the Government. United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015). “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.” Id. (internal'quotation marks omitted).

After review of the record and the parties’ briefs, we reject as wholly without merit Marshall’s challenges to the sufficiency of the evidence underlying his convictions on all three counts. Marshall’s arguments fail to establish reversible error in the district court’s conclusion that the evidence adduced at trial was sufficient to support his convictions. See 18 U.S.C. §§ 2, 371, 1014, 1343, 1344, 1956(h), 1957 (2012); United States v. McNeal, 818 F.3d 141, 149 (4th Cir. 2016), petition for cert. filed, — U.S.L.W. — (U.S. June 28, 2016) (No. 16-5017); United States v. Ade-poju, 756 F.3d 250, 254-55 (4th Cir. 2014); United States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012); United States v. Singh, 518 F.3d 236, 248 (4th Cir. 2008); United States v. Cherry, 330 F.3d 658, 668 (4th Cir. 2003); United States v. Smith, 29 F.3d 914, 916 (4th Cir. 1994).

Turning to the district court’s instructions on count 1, we review for plain error Marshall’s argument that the court erroneously instructed the jury with respect to the wire-fraud object because he did not object below to the court’s instructions on the ground he now advances. See Fed. R. Crim. P. 52(b); Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1126-27,185 L.Ed.2d 85 (2013).

Regarding the wire-fraud object, the district court instructed the jury, among other matters, that:

A violation of this statute would require proof that, one, someone in the conspiracy, with the intent to defraud, knowingly devised a scheme or artifice to defraud or to obtain money or property by means of material false or fraudulent pretenses,- representations or promised [sic] as detailed in the indictment; and two, that in furtherance of the scheme, someone transmitted or caused the transmission of any writing by a means of a wire communication in interstate or foreign commerce.

J.A. 647 (emphases added). Marshall argues that, because the second use in this instruction of “someone” was not followed by the words “in the conspiracy,” the jury could have found him guilty when neither he nor any other member of the conspiracy transmitted information by wire. We conclude after review of the record that the court’s second use in the instruction of the word “someone” without the modifier “in the conspiracy” was not clear or obvious error under the settled law of the Supreme Court or of this circuit. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United *277 States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013). Further, as Marshall has not suggested that he would have been acquitted or that his trial would have ended in a hung jury had the district court modified its second use of the word “someone” with the phrase “in the conspiracy,” he cannot establish that the challenged instruction affected the outcome of the trial. See United States v. Godwin, 272 F.3d 659, 680 (4th Cir. 2001); United States v. Nicolaou, 180 F.3d 565, 570 (4th Cir. 1999); United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). Marshall thus has not carried his burden to demonstrate plain error in the district court’s instructions on count 1.

Finally, Marshall challenges the district court’s calculation of the loss amount attributable to him under the Sentencing Guidelines, arguing that the court erroneously failed to credit against that amount payments made to the victims and capital recovered by them prior to sentencing. Marshall did not present this argument below, and we therefore review it for plain error only. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).

Only a preponderance of the evidence need support the district court’s factual determination of the loss amount attributable to Marshall, United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). The district court need only make a “reasonable estimate” of the loss. United States v. Cloud, 680 F.3d 396, 409 (4th Cir. 2012); USSG § 2B1.1 cmt. n.3(C). Generally, the loss amount under USSG § 2B1.1 “is the greater of actual loss or intended loss.” USSG § 2B1.1 cmt. n.3(A).

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Related

United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Strieper
666 F.3d 288 (Fourth Circuit, 2012)
United States v. William Jefferson
674 F.3d 332 (Fourth Circuit, 2012)
United States v. Danny K. Smith
29 F.3d 914 (Fourth Circuit, 1994)
United States v. Robert B. Miller
316 F.3d 495 (Fourth Circuit, 2003)
United States v. Billie J. Cherry
330 F.3d 658 (Fourth Circuit, 2003)
United States v. Joseph Junior Revels
455 F.3d 448 (Fourth Circuit, 2006)
United States v. Cloud
680 F.3d 396 (Fourth Circuit, 2012)
Henderson v. United States
133 S. Ct. 1121 (Supreme Court, 2013)
United States v. Singh
518 F.3d 236 (Fourth Circuit, 2008)
United States v. Jolon Carthorne, Sr.
726 F.3d 503 (Fourth Circuit, 2013)
United States v. Adetokunbo Adepoju
756 F.3d 250 (Fourth Circuit, 2014)
United States v. Hastings
134 F.3d 235 (Fourth Circuit, 1998)
United States v. Nicolas Nicolaou
180 F.3d 565 (Fourth Circuit, 1999)
United States v. Anthony Palomino-Coronado
805 F.3d 127 (Fourth Circuit, 2015)
United States v. James McNeal
818 F.3d 141 (Fourth Circuit, 2016)

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Bluebook (online)
663 F. App'x 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-marshall-ca4-2016.