Filed: Sep. 05, 2002
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4400 MICHAEL JAMES CASSIDY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4401 GALEN CLIFTON SHAWVER, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4402 CLYDE B. BEVERLY, Defendant-Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Durham. Willia
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4400 MICHAEL JAMES CASSIDY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4401 GALEN CLIFTON SHAWVER, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4402 CLYDE B. BEVERLY, Defendant-Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Durham. William..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4400
MICHAEL JAMES CASSIDY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4401
GALEN CLIFTON SHAWVER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4402
CLYDE B. BEVERLY,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-262)
Argued: June 6, 2002
Decided: September 5, 2002
2 UNITED STATES v. CASSIDY
Before MICHAEL and GREGORY, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David Bruce Freedman, WHITE & CRUMPLER,
Winston-Salem, North Carolina, for Appellant Shawver; Nils Edward
Gerber, Winston-Salem, North Carolina, for Appellant Cassidy;
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant Beverly. Douglas Cannon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael James Cassidy ("Cassidy"), Galen Clifton Shawver
("Shawver") and Clyde B. Beverly ("Beverly") (collectively "Defen-
dants") appeal their convictions and sentences for mail fraud, wire
fraud, money laundering and conspiracy. Defendants contend that
their convictions were based on insufficient and inadmissible evi-
dence, that the prosecution shifted the burden of proof, and that the
district court improperly instructed the jury. Cassidy and Shawver
contend that the district court improperly enhanced their sentences.
UNITED STATES v. CASSIDY 3
Shawver contends that the district court violated his rights to counsel
and of confrontation at trial.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude
that the district court improperly, but harmlessly, admitted evidence
of a non-testifying co-defendant’s statements inculpating Shawver.
Defendants’ remaining arguments are without merit. We affirm.
I
Defendants marketed "international bank debentures" and other
supposed high-yield international investments to small investors. The
details of the purported investments varied and were never put in
writing. Hopeful investors gave more than three million dollars to
Defendants, but few, if any, ever saw their funds again.
One investor tape recorded Cassidy’s pitch of the investment
scheme. Cassidy told him that his funds would "never leav[e] the
bank" and would be used to purchase securities issued by the United
States Treasury. The securities would serve as "non-recourse" collat-
eral in highly leveraged trades between European banks. The
expected annual profit to the investor in these transactions was 300
per cent. Each of these statements by Cassidy proved false, and the
investor never received a return of principal or profits.
Cassidy usually pitched the investments and portrayed Shawver or
Beverly as the man handling the bank trades. Sometimes Beverly
played the role of pitchman. Beverly also prepared paperwork for
investors to sign. Prospective investors who decided to invest were
instructed to wire their funds to an account Shawver controlled.
Once investors’ funds were sent to Defendants, Defendants sent
investors accounting statements purporting high profits in bank
trades. The actual activity in Defendants’ accounts showed no evi-
dence of the supposed trades or profits. Meanwhile, Defendants used
investors’ funds to pay personal debts and expenses. Investors who
attempted to withdraw their principal or profits received repeated
excuses from Defendants instead of funds.
4 UNITED STATES v. CASSIDY
Several investors who sought to retrieve investment funds from
Shawver before the period covered by the indictment complained to
North Carolina authorities. In 1998, an attorney formerly employed
by a company which Shawver controlled sent North Carolina and fed-
eral authorities an affidavit and copies of the company’s bank records.
The attorney accused Shawver of using funds in the company’s pen-
sion accounts to pay his personal expenses. Based on this information,
North Carolina authorities served a search warrant and froze a bank
account containing investors’ funds controlled by Shawver. Even
after the account was frozen, Cassidy continued to pitch Defendants’
scheme to new investors, directing them to wire funds to other
accounts controlled by Defendants in other States.
Beverly contacted a North Carolina State investigator to discuss the
frozen account. He offered to pay back all investors if the State would
unfreeze Shawver’s account and transfer the funds to an out-of-State
account controlled by Beverly. The account remained frozen. Months
later, Beverly sent a letter to investors informing them of the freeze
and warning them that Shawver was under investigation for fraud.
Federal authorities eventually seized the funds in the frozen account.
On August 1, 2000 a federal grand jury indicted Defendants on
multiple counts of conspiracy, wire fraud, mail fraud and money laun-
dering. On August 4, 2000 the district court appointed a public
defender to represent each Defendant. The court set a trial date of
September 11, 2000. Trial was later continued to October 30, 2000 on
Shawver’s motion.
On October 18, 2000, thirteen days before trial, Shawver moved
pro se for discharge of his appointed counsel, Eric Placke ("Placke"),
and for a 120 day continuance to seek private counsel. On October 21,
2000, the district court heard Shawver’s motion. Shawver told the
court that he and Placke had irreconcilable differences. He said
Placke lacked banking expertise, had subpoenaed no witnesses, had
ignored his many suggestions as to evidence and witnesses, and was
biased against him. Shawver told the court he wished to proceed with-
out Placke as counsel, and that a law firm had agreed to represent him
on condition that he pay them a $300,000 retainer and secure a 120
day continuance. Shawver said his family was still raising funds for
UNITED STATES v. CASSIDY 5
the retainer, but that he did not want Placke to represent him in any
event, even if it meant going to trial pro se.
The court questioned Shawver and Placke about their disagree-
ments and Shawver’s ability to represent himself. Placke described
his efforts to prepare a defense and said he would be ready and able
to defend Shawver at trial. Shawver said he had taken some college
classes and had defended himself in previous civil actions. The court
concluded that Placke and Shawver simply disagreed on defense tac-
tics, and ruled that no good cause existed to discharge Placke.
The court told Shawver it would not grant him a continuance to
seek private counsel, but that if Shawver secured private counsel
before the final pretrial hearing on October 27, 2000 (six days later),
it would "in all probability" grant a continuance to give the new coun-
sel a chance to prepare for trial. The court warned Shawver very
clearly that if he chose to discharge Placke and failed to hire private
counsel in the next six days, he would have to go to trial pro se on
October 30. Shawver said that he understood and wanted Placke dis-
charged anyway. The court discharged Placke.
On October 27, 2000, Shawver appeared pro se at the final pretrial
hearing and renewed his request for a 120 day continuance. He said
he had not yet raised a retainer, seen the government’s evidence or
obtained exculpatory evidence. The court subjected Shawver’s former
counsel Placke to voir dire examination to explore Shawver’s justifi-
cations for a continuance. Shawver and the government cross-
examined Placke. The government told the court that Shawver’s
promises were "always just around the corner" and that the continu-
ance should be denied. The court declined to grant a continuance,
finding that Shawver had shown no excuse for moving so belatedly
for discharge of counsel and postponement of trial.
Defendants’ joint trial began on October 30 with Shawver repre-
senting himself. Shawver vigorously (if inexpertly) filed motions,
made objections and cross-examined government witnesses. The
court helped Shawver follow the rules of court and subpoena wit-
nesses. Of the three Defendants, only Shawver testified or called wit-
nesses in his defense.
6 UNITED STATES v. CASSIDY
The testimony of Shawver’s last witness inculpated Beverly. The
witness behaved so bizarrely on the stand, however, that both Cassidy
and Beverly moved for the testimony to be stricken on grounds of
witness incompetence. The district court conducted voir dire, deter-
mined that the erratic behavior of the witness was caused by hypogly-
cemia, and decided to allow the testimony.
After a 13 day trial, the jury convicted each Defendant of one count
of conspiracy to commit fraud using mail or wire, one count of con-
spiracy to launder money, nine counts of mail fraud and three counts
of wire fraud. The jury also convicted Shawver of nine counts, and
Beverly of one count, of money laundering.
Shawver secured counsel for his sentencing from the law firm that
had conditionally offered to represent him before trial. The district
court found by a preponderance of the evidence that Cassidy and
Shawver had mass-marketed, relocated and organized the scheme and
that the scheme involved at least five people, and enhanced Cassidy’s
and Shawver’s sentences. The court further enhanced Shawver’s sen-
tence based on its findings that he had obstructed justice and laun-
dered over 2 million dollars. The court sentenced Defendants Cassidy,
Shawver and Beverly to 99 months, 134 months and 46 months of
imprisonment respectively.
Defendants appeal their convictions and sentences.
II
Shawver contends that the district court violated his Sixth Amend-
ment right to counsel by forcing him to forgo counsel and represent
himself at trial without adequate time to prepare a defense. The dis-
trict court properly resolved these Sixth Amendment claims.
In its three relevant pretrial rulings, the district court (1) denied
Shawver’s motion to dismiss appointed counsel Placke for cause, (2)
granted Shawver’s motion to dismiss Placke and proceed pro se and
(3) denied Shawver’s motion to continue. For clarity’s sake we
address these rulings seriatim, although we recognize that the three
analyses are interrelated. We review the rulings generally for abuse
UNITED STATES v. CASSIDY 7
of discretion. United States v. Mullen, 32 F.3d 891, 895 (4th Cir.
1994). We review de novo whether Shawver voluntarily waived his
right to counsel. United States v. Singleton,
107 F.3d 1091, 1097-98
& n.3 (4th Cir. 1997).
A.
The district court determined that Shawver lacked good cause to
reject Placke as his appointed counsel. To determine whether the dis-
trict court acted within its discretion, we examine whether the court
conducted a thorough inquiry into the factual basis of Shawver’s dis-
satisfaction. Mullen, 32 F.3d at 896. We further examine the timeli-
ness of Shawver’s motion, the adequacy of the district court’s inquiry
into Shawver’s complaint and whether Placke’s conflicts with
Shawver were so great as to preclude an adequate defense at trial.
Id.
Shawver first moved for discharge of Placke fewer than 14 days
before trial. The district court addressed the motion and questioned
Shawver and Placke closely about Placke’s representation of
Shawver. Placke told the court that he had worked nearly 130 hours
on Shawver’s case. He said he had considered Shawver’s suggestions
as to evidence and witnesses but rejected them as unwise both from
"a trial advocacy standpoint" and in light of his "duty . . . as an officer
of the court." Placke said he was "concern[ed]" about Shawver’s level
of dissatisfaction but would be ready and able to defend him at trial.
In response to Placke’s explanations, Shawver simply repeated his
assertion that Placke should have obtained the witnesses and evidence
he suggested. He said again that the evidence and witnesses in ques-
tion would exculpate him from the charges but did not intelligibly
explain how. He did not rebut Placke’s explanations for why he
rejected the witnesses and evidence. In sum, Shawver failed to show
that any of Placke’s tactical decisions were incorrect. See
id.
We conclude that the district court adequately inquired into
Shawver’s dissatisfaction with his appointed counsel and was within
its discretion to conclude that no cause existed to dismiss Placke.
8 UNITED STATES v. CASSIDY
B.
After the district court refused to discharge Placke for cause,
Shawver moved for the court to discharge Placke without cause and
let Shawver handle his own representation.1 The district court
inquired into Shawver’s level of education and whether he truly
wished to forgo appointed counsel. The court accepted his waiver as
knowing, intelligent and voluntary. Shawver argues that the court
erred in accepting his waiver. We disagree.
Shawver enjoyed both a constitutional and statutory right to choose
to represent himself at trial. 28 U.S.C. § 1654 (2001); United States
v. Lawrence, 605 F.2d 1321, 1324 (4th Cir. 1979). "[A]lthough courts
are commanded to protect the right to counsel zealously, the defen-
dant can waive the right if the waiver is knowing, intelligent, and vol-
untary,"
Singleton, 107 F.3d at 1095, as well as clear and
unequivocal. Fields v. Murray,
49 F.3d 1024, 1029 (4th Cir. 1995)
(en banc). The trial court must determine from the record as a whole
that the waiver is sufficient and need not necessarily conduct a "for-
malistic, deliberate, [or] searching inquiry." United States v. Gallop,
838 F.2d 105, 110 (4th Cir. 1988).
Shawver told the district court that he had some college education,
worked as a mortgage banker and had represented himself in related
civil proceedings. Shawver’s letters to Placke while Placke was still
his counsel show that Shawver was well aware of the nature and seri-
ousness of the charges against him. The district court told Shawver
that it saw no good cause to discharge Placke, that Placke was "one
of the finest criminal defense lawyers in this Middle District," that
self-representation without legal training would almost certainly be a
grave mistake, that Shawver would not be able to change his mind
once he rejected Placke as appointed counsel and that if he failed to
appear with private counsel at the final pretrial hearing he would have
to go to trial pro se and would not be granted a continuance.
Shawver said that he understood the district court’s position,
although he disagreed with it. Nevertheless, he insisted repeatedly and
1
It does not appear that Shawver ever moved for appointment of sub-
stitute counsel to replace Placke.
UNITED STATES v. CASSIDY 9
unequivocally that he wanted Placke discharged. The district court
obliged. Our examination of the trial record discloses no later expres-
sions of uncertainty by Shawver that might have cast doubt on the
genuineness or sufficiency of Shawver’s waiver. See United States v.
Gillis, 773 F.2d 549, 559 (4th Cir. 1985).
Shawver argues that his waiver was involuntary because the district
court refused to continue the trial to allow him to seek private counsel
or prepare his pro se defense. Shawver disagreed with the court’s
refusal to grant a continuance to seek counsel, but that does not render
his waiver involuntary. See
Gallop, 838 F.2d at 110. The court gave
Shawver six days to hire the private counsel that he said he was
arranging to hire. The court also told Shawver that if he indeed hired
counsel he would be given an appropriate continuance to allow the
new counsel to prepare his defense. Shawver knew that he had six
days to secure new counsel and that the case would not be continued
otherwise.
As for the district court’s refusal to give Shawver additional time
to prepare his pro se defense, the district court had already held that
Shawver had no good cause to reject his counsel. At the time Placke
was discharged, 13 days before trial, the court was well within its dis-
cretion to hold Shawver to the scheduled trial date.2
We conclude that Shawver’s "refusal without good cause to pro-
ceed with able appointed counsel [wa]s a voluntary waiver" of
appointed counsel.
Gallop, 838 F.2d at 109 (quotation marks omit-
ted). We conclude further that it was knowing and intelligent.
2
The district court’s later denials of Shawver’s renewed requests for a
continuance are irrelevant to the sufficiency of his waiver. Waiver is
judged by the record "as known to the trial court at the time,"
Singleton,
107 F.3d at 1097, not by the court’s refusal to grant subsequent motions
to continue or the quality of Shawver’s later defense of himself. "A
defendant who exercises his right to appear pro se ‘cannot thereafter
complain that the quality of his own defense amounted to a denial of
effective assistance of counsel.’" McKaskle v. Wiggins,
465 U.S. 168,
177 n.8 (1984) (quoting Faretta v. California,
422 U.S. 806, 834 n.46
(1975)).
10 UNITED STATES v. CASSIDY
In light of Shawver’s waiver, the district court’s dismissal of
Placke appropriately reconciled the competing rights of representation
by counsel and self-representation. See
Singleton, 107 F.3d at 1096.
Courts must respect the right to self-representation "even if [they]
believ[e] that the defendant will benefit from the advice of counsel."
Id. Refusal to accept a timely and genuine waiver can be reversible
error.
Fields, 49 F.3d at 1029. The district court was well within its
discretion to take Shawver at his word and discharge Placke.
C.
Shawver argues that even if his waiver of appointed counsel was
valid, the district court rendered his trial fundamentally unfair by not
granting him a continuance after Placke was discharged to give
Shawver more time to seek private counsel or prepare his own
defense. "[C]ontinuance is traditionally within the discretion of the
trial judge, and it is not every denial of a request for more time that
violates [the Constitution] even if the [defendant] fails to offer evi-
dence or is compelled to defend without counsel." Ungar v. Sarafite,
376 U.S. 575, 589 (1964) (citations omitted). Whether a court has
abused its discretion by denying a continuance "‘must be found in the
circumstances . . . particularly in the reasons presented to the trial
judge at the time the request is denied.’" Hutchins v. Garrison,
724
F.2d 1425, 1432 (4th Cir. 1983) (quoting
Ungar, 376 U.S. at 589).
Shawver’s argument has no merit.
Shawver showed up at the final pretrial hearing pro se and renewed
his request for a continuance to seek counsel and prepare his defense.
Shawver gave no new reasons for needing more time to seek counsel.3
Shawver also complained that he had been improperly barred from
obtaining, or ever seeing, the evidence against him.
The court placed Shawver’s former counsel Placke on the witness
stand to explore whether Shawver was justified in asking for a contin-
uance to prepare his defense. Shawver cross-examined Placke. Placke
indicated that he had not subpoenaed certain witnesses recommended
by Shawver because he believed their testimony would be either
3
Shawver sought a continuance a third time in a motion for reconsider-
ation filed at the eve of trial. The motion was denied.
UNITED STATES v. CASSIDY 11
unhelpful or inadmissible. The government disputed Shawver’s asser-
tion that he had been denied access to evidence and suggested that
Shawver was seeking merely to delay the trial. The court ruled that
Shawver’s request for a continuance to prepare his defense was
untimely, and denied the motion.
Although the district court had to afford Shawver "a reasonable
opportunity to secure counsel of his own choosing," Gallop, 838 F.2d
at 107, and to prepare his defense, Lee v. Winston,
717 F.2d 888, 896
(4th Cir. 1983), "the court [wa]s entitled to take into account the
countervailing state interest in proceeding on schedule."
Gallop, 838
F.2d at 107. Shawver had months to prepare his defense while Placke
was his counsel. It is true that Shawver himself had been enjoined
from personal contact with any potential trial witnesses. Placke was
not so enjoined, and Shawver has not shown that Placke failed to
investigate and consider those witnesses sufficiently before trial.
Shawver had both time and warning sufficient to safeguard his rights.
The government had scheduled the appearance of numerous witnesses
and the two other Defendants were ready to proceed with the joint
trial. "The record here shows no unreasonable want of indulgence" of
Shawver by the court. Sykes v. Commonwealth,
364 F.2d 314, 316
(4th Cir. 1966) (per curiam). In the circumstances, the district court
was entitled to hold Shawver to the trial schedule.
United States v. Gallop,
838 F.2d 105 (4th Cir. 1998), supports our
conclusion that the district court acted within its discretion. In Gallop,
the district court rejected defendant’s claims of irreconcilable differ-
ences with appointed counsel, granted defendant’s motion to dis-
charge counsel and proceed pro se, and denied his motion for a
continuance to prepare his defense.
Id. at 107. We held that the dis-
trict court acted within its discretion.
Id. at 108-09. Although defen-
dant’s former counsel remained in the proceedings in Gallop as
"backup" counsel,
id. at 107, the analysis did not turn on the presence
of backup counsel. See
id. at 107-09; see also
Singleton, 107 F.3d at
1100 (holding that pro se defendants have no general right to backup
counsel).
Shawver argues that he was entitled to a continuance under Mullen,
32 F.3d 891, in which we vacated a conviction on the ground that the
district court should have granted the defendant’s motion, made a
12 UNITED STATES v. CASSIDY
month before trial, to substitute counsel. The facts of Mullen differ
substantially from the facts of this case. In Mullen, the trial court
found that irreconcilable differences existed between defendant and
her counsel.
Id. at 896-97. In this case, the district court found no
such breakdown in Shawver’s relationship with Placke. In Mullen, the
trial court did not explicitly find defendant’s motion to be untimely
and the government in fact conceded that it was timely.
Id. In this
case, the district court explicitly found Shawver’s motion to be
untimely and the government makes no contrary concession. Mullen
does not support the contention that the district court in this case
abused its discretion.
We conclude that the district court acted within its discretion in
denying Shawver’s requests for a continuance.
D.
In sum, we conclude that Shawver validly waived his right to
appointed trial counsel and that the district court’s pretrial rulings,
whether taken individually or collectively, fell within its discretion.
Shawver’s Sixth Amendment right to counsel was fully protected by
the district court.
III
Shawver argues that the district court violated his Confrontation
Clause rights under Bruton v. United States, 391 U.S. 123 (1968), by
admitting evidence of statements by his co-defendant Beverly incul-
pating him. We agree that Bruton error occurred, but conclude that
the error was harmless.
A paradigmatic Bruton violation occurs when, at a joint trial, a
court admits into evidence a non-testifying defendant’s custodial con-
fession inculpating a co-defendant. Close v. United States,
450 F.2d
152, 153 (4th Cir. 1971). Shawver suggests that we review for abuse
of discretion with de novo review of associated questions of law. We
need not decide whether Shawver is correct,4 for it is clear that harm-
4
The record does not show clearly whether Shawver preserved or
defaulted the Bruton issue. Shawver never objected at trial to the intro-
UNITED STATES v. CASSIDY 13
less error analysis applies, Harrington v. California, 395 U.S. 250,
254 (1969), and under Shawver’s suggested standard of review no
prejudicial Bruton errors occurred.
Shawver points first to a North Carolina law enforcement agent’s
testimony concerning telephone conversations the agent had with
Beverly in late 1997 and early 1998. According to the agent, Beverly
made several statements damaging to Shawver during these conversa-
tions. Beverly did not testify at trial and could not be cross-examined
by Shawver. We nevertheless find no reversible error in the admission
of these statements.
Beverly’s statements to the agent were not custodial, were not con-
fessions and did not appear to intentionally inculpate Shawver or any-
one else. Contrary to Shawver’s assertions, Beverly did not explicitly
admit to the agent any wrongdoing by himself or Shawver. Beverly
never told the agent that the investment scheme was a scam or that
Beverly had fallen out with Shawver. It appears that, in an attempt to
convince the agent to unfreeze Shawver’s accounts, Beverly assured
the agent that Defendants, including Shawver, were blameless. We
conclude that Beverly’s statements were at least arguably made in fur-
therance of the conspiracy between Defendants. Statements that both
inculpate a co-defendant in a conspiracy with the speaker and further
that conspiracy do not run afoul of Bruton. United States v. Inadi,
475
U.S. 387, 400 (1986).
Shawver also points to the admission of evidence that Beverly sent
a letter to investors months after his conversation with the agent
warning them of "fraud by Mr. Shawver, the trustee." Although this
statement does not explicitly accuse Shawver of wrongdoing, it tends
to inculpate Shawver and does not further any conspiracy between
him and Beverly. Although Beverly was not in custody at the time,
he knew that both he and Shawver were under investigation and that
duction of Beverly’s inculpatory statements. He did, however, move for
their exclusion in limine through his counsel Placke. The district court
sought to dispose of all pending motions in limine after discharging
Placke, and seemed to overlook this one, but nevertheless entered a min-
ute order the same day stating that the motion was "mooted." We assume
that the Bruton issue is preserved.
14 UNITED STATES v. CASSIDY
he stood to gain by inculpating Shawver. See Lee v. Illinois,
476 U.S.
530, 541 (1986). We conclude that admission of this statement vio-
lated Shawver’s confrontation rights under Bruton and was an abuse
of discretion.
Id.
We further conclude, however, that this error did not prejudice
Shawver. The government did not need to rely on statements by
Shawver’s co-defendants to inculpate Shawver. Admitted evidence
from other sources that Shawver helped defraud investors was over-
whelming. Defendants never seriously contested the evidence that
they took investors’ funds under false pretenses and failed to use the
funds to purchase the instruments described to investors. Shawver
conceded that he controlled accounts containing investors’ funds and
wrote checks from them to pay credit card bills, tort judgments and
other personal expenses. He conceded that he continued to accept
deposits of funds from new investors without disclosing the freezing
of earlier investors’ deposits by State and federal authorities investi-
gating complaints by earlier investors. Shawver’s explanations for
these actions were rambling and without evidentiary support. Bever-
ly’s warning that Shawver was being investigated for possible wrong-
doing was merely cumulative in light of the "wealth of condemnatory
evidence" against Shawver. United States v. Crockett,
813 F.2d 1310,
1315-16 (4th Cir. 1987). Its admission was harmless beyond a reason-
able doubt.
Id.
We conclude that admission of Beverly’s conversations with the
North Carolina law enforcement agent did not violate Shawver’s
rights under Bruton. Beverly’s statement to investors that Shawver
was under investigation, although erroneously admitted, was harm-
less.
IV
Shawver asserts that much of the evidence at trial was fruit of a
poisonous tree, the seed of which was the affidavit given to law
enforcement officials in 1996 by an attorney formerly employed by
Shawver’s company. The information in this affidavit formed part of
the basis for search warrants executed against Shawver’s home, office
and bank records in 1998. Shawver argues that the information in the
affidavit was protected by the attorney-client privilege and that the
UNITED STATES v. CASSIDY 15
evidence obtained as a result of these searches is inadmissible. We
reject Shawver’s argument.
Shawver raised this issue in a motion in limine to suppress the evi-
dence in question. The district court reserved its ruling on this motion,
and Shawver did not apparently raise the issue again until now. We
accept Shawver’s suggestion to review for clear error, with de novo
review of legal questions. See Hawkins v. Stables, 148 F.3d 379, 382
(4th Cir. 1998).
We must narrowly construe the attorney-client privilege, and
Shawver has the burden to show that the privilege is applicable.
Id.
at 383. In its opposition to Shawver’s motion in limine, the govern-
ment pointed out correctly that the affidavit includes a mix of the affi-
ant’s personal observations, statements by various persons and
contents of various documents. Shawver’s motion did not describe
which facts in the affidavit, if any, were covered by the privilege and
which were not. On appeal, Shawver fails to supply any more speci-
ficity and simply repeats his blanket assertion that the entire affidavit
is privileged. Shawver has failed to carry his burden of proof to dem-
onstrate the existence, let alone the applicability, of the claimed privi-
lege. See
id. at 383-84.
Moreover, Shawver does not dispute the government’s assertions
that the client of the affiant attorney was Shawver’s company rather
than Shawver himself, and that Shawver introduced this affidavit into
the public record in earlier court proceedings. Either of these asser-
tions, if true, waives whatever privilege might have formerly attached
to the affidavit. See
id. at 383; United States v. Oloyede,
982 F.2d
133, 141 (4th Cir. 1993) (per curiam).
We conclude that Shawver has not demonstrated that the attorney-
client privilege applies to the affidavit in question. Admission of evi-
dence seized on the basis of the affidavit was not erroneous.
V
Defendants argue that the government sought to convince the jury
that the type of investments Defendants offered were fraudulent per
16 UNITED STATES v. CASSIDY
se, and contend that under Holland v. United States, 348 U.S. 121
(1954), this "indict the industry" theory shifted the burden of proof to
Defendants. Defendants claim (without citing the record) that they
preserved this issue by objecting to the statements in question. We
have searched the record and find no sufficient objection. We review
for plain error. United States v. Williams,
990 F.2d 507, 510 (9th Cir.
1993). No error occurred.
One expert witness for the government testified that the rates of
return promised to investors by Defendants are characteristic of Ponzi
schemes and practically impossible in legitimate investments. Defen-
dants argue that these statements shifted the burden of proof from the
government to Defendants and constitute reversible error. In the alter-
native, Defendants argue that the court should at least have given the
jury tailored instructions concerning "the nature of the [government’s
supposed "indict the industry" theory], the assumptions on which it
rests, and the inferences available both for and against the accused"
in addition to the standard instructions concerning burden of proof.
Id.; see United States v. Carter,
721 F.2d 1514, 1539 (4th Cir. 1984).
We cannot accept Defendants’ contention that the government
employed a theory of indirect proof comparable to the "net worth"
method of proof employed in Holland.5 The government’s theory at
trial was not that the investments Defendants offered were intrinsi-
cally fraudulent, but that the investors’ funds were never invested.
The government concentrated on showing that Defendants’ sales pitch
was filled with falsehoods and that Defendants used investors’ funds
for their own personal expenses instead of investing them as prom-
ised. The characteristics of the "investments" themselves were of
comparatively minor, if any, importance.
5
In Holland, the government sought to prove tax evasion indirectly
using a net worth theory, by showing that defendants had obtained more
assets during the year in question than could be explained by their
reported net
income. 348 U.S. at 125; see United States v. Bethea,
537
F.2d 1187, 1188-89 (4th Cir. 1976). The Supreme Court warned that a
theory of guilt based on such indirect and approximate circumstantial
evidence required careful scrutiny and "especially clear" jury instructions
to avoid shifting the burden of proof to defendants to prove their inno-
cence.
Holland, 348 U.S. at 129.
UNITED STATES v. CASSIDY 17
Throughout the trial, the district court’s relevancy rulings hewed
consistently to this theory. The government’s closing argument, con-
trary to Defendants’ assertions, did not refer to or rely upon expert
testimony supporting an inference that the returns Defendants prom-
ised were impossible except in Ponzi schemes. The jury was
instructed clearly, correctly and sufficiently on the burden of proof.
The government’s attempts to characterize Defendants’ investment
scheme as shady were not nearly as "fraught with danger to the inno-
cent" as the indirect method of proof used in Holland. 348 U.S. at
125. We discern no "more than the ordinary use of circumstantial evi-
dence in the usual criminal case." United States v. Bethea,
537 F.2d
1187, 1188 (4th Cir. 1976). The government did not shift the burden
of proof to Defendants.
VI
Defendants argue that the district court should have granted their
motions for acquittal, made at the close of the government’s case in
chief, on the ground that insufficient evidence supported their convic-
tions. We examine the evidence adduced at trial in the light most
favorable to the government. Crockett, 813 F.2d at 1316. If any ratio-
nal jury could have convicted Defendants, this argument must fail.
United States v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982). It
fails.
The government presented ample evidence that Defendants fre-
quently transferred investors’ funds between accounts they controlled
and communicated with each other concerning these transactions.
There was ample evidence that Defendants lied to investors about
expenditures of invested funds and that few investors ever recovered
any funds. When accounts were frozen, Defendants carried on with
other accounts in other States and did not alert investors of ongoing
investigations by the authorities.
The cruces of Cassidy’s defense were that he believed the invest-
ment scheme he was pitching was legitimate and he never profited
from Shawver’s and Beverly’s fraudulent activities. Cassidy commu-
nicated constantly with Shawver and Beverly. He supplied investors
with innumerable excuses why they were not receiving their funds.
18 UNITED STATES v. CASSIDY
He convinced investors to send funds to accounts controlled by the
conspirators and then transferred the funds to another defendant’s per-
sonal account. Moreover, there was affirmative evidence from which
the jury could conclude that Cassidy and his brother were both paid
investors’ funds out of accounts Shawver controlled. A rational jury
could conclude from this evidence that Cassidy could not possibly
have believed that investors were not being cheated by this invest-
ment scheme. The jurors could also conclude that Cassidy profited
from the scheme himself.
The crux of Shawver’s defense was that the withdrawals of inves-
tors’ funds from his accounts were accomplished either to pay valid
trust expenses or in legitimate "ledger transfers" backed by an emer-
ald he claimed to own. Shawver never produced this fabled gem or
even purported to account for more than a fraction of the alleged "ex-
penses." He never explained how credit card bills, utility bills, golfing
fees or personal mortgage payments could constitute valid use of
investors’ funds by persons who were supposedly entrusted with such
funds for use as collateral in safe international banking trades.
Shawver personally performed the transactions that were the basis of
most of the money laundering counts.
The crux of Beverly’s defense was that he believed everything
Shawver told him. There was ample evidence to the contrary. Beverly
prepared what paperwork was associated with the scheme and pitched
the scheme to several investors. He received investors’ funds from an
account Shawver controlled. He tried to convince State investigators
to transfer the funds in Shawver’s frozen accounts into one of his own
accounts in another State. His warning letter to investors came
months after he became aware of the investigations and after he had
received investors’ funds from Shawver.
That much of the evidence against Defendants is circumstantial
does not make it insufficient.
Crockett, 813 F.2d at 1316. We con-
clude that the evidence supports Defendants’ convictions on every
count reflected in the verdict.
VII
Defendants unsuccessfully objected to a standard jury instruction
given by the district court known as the "wilful blindness" or "ostrich"
UNITED STATES v. CASSIDY 19
instruction. The instruction essentially told the jury that they could
infer scienter from "proof that a defendant deliberately closed his eyes
to what would have been obvious to him." Defendants contend that
the evidence did not support the instruction. Review is for abuse of
discretion. United States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999).
There was no abuse.
The wilful blindness instruction is proper if there was evidence
from which the jury could infer that Defendants took conscious
actions to escape confirmation of what they strongly suspected.
United States v. Whittington, 26 F.3d 456, 462-63 (4th Cir. 1994).
There was evidence that Cassidy and Beverly parroted to investors
statements made by Shawver that they had strong reason to doubt and
refused to discuss the possibility that Shawver was lying. There was
evidence that Shawver did not know where all the investors’ funds
flowing into his accounts was coming from, yet continued to accept
the deposits into his account and withdraw the funds for personal
expenses. The jury could have concluded that all three Defendants
were deliberately avoiding knowledge of the details of each other’s
illicit activities.
Id.
The district court did not abuse its discretion by instructing the jury
that wilful blindness can show scienter.
VIII
Cassidy and Shawver contend that the district court improperly
admitted certain evidence of their similar bad acts under Federal Rule
of Evidence 404(b). Rule 404(b) prohibits admission of such evidence
solely to establish bad character, but permits it for other purposes
"such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fed. R. Evid.
404(b). We review for abuse of discretion. United States v. Haney,
914 F.2d 602, 607 (4th Cir. 1990). We conclude that no abuse
occurred.
A.
Cassidy objected unsuccessfully to testimony by an investor about
fraud by Cassidy not covered by the charges in this case. The investor
20 UNITED STATES v. CASSIDY
testified that Cassidy persuaded her to invest in a purported invest-
ment similar to those involved in this case and that she never saw her
funds again. The district court warned jurors to consider this testi-
mony only for Rule 404(b) purposes and only against Cassidy. This
evidence was relevant to show both that Cassidy used a standard
modus operandi to sell bogus investments and that he did not mis-
takenly believe that the investment scheme in this case was legiti-
mate.
Cassidy also argues that numerous references at trial to corporate
"investment" seminars in the Caribbean in which Cassidy gave pre-
sentations to small investors amounted to impermissible evidence of
his bad character. No Defendant objected when the government men-
tioned the seminars in its opening statement. Cassidy elicited the first
evidence of these seminars with leading questions during cross-
examination of government witnesses. Cassidy opened the door to
further testimony regarding the seminars. The admission of this testi-
mony was not erroneous.
B.
Shawver contends that testimony by former investors concerning
their dealings with Shawver before 1998 and 1999 should not have
been admitted against him. These transactions occurred prior to the
illicit activities alleged in the indictment. Shawver says this testimony
was evidence of his bad character in general. Shawver did not object
to this evidence at trial. No plain error occurred.
The investors in question testified that they had to sue Shawver
before he returned their principal. Shawver told them at first that the
invested funds were not available. Shawver eventually returned prin-
cipal in 1998 and 1999, within the period covered by the indictment.
This testimony was relevant to show that Shawver’s claims of vast
hidden assets in that period, which supposedly served as collateral for
his withdrawals of investors’ funds from his accounts, were false. The
evidence was admissible under Rule 404(b) to show knowledge and
intent.
We conclude that the district court did not abuse its discretion in
admitting this evidence against Cassidy and Shawver.
UNITED STATES v. CASSIDY 21
IX
Cassidy and Beverly argue that the district court improperly denied
their motion to strike the testimony of an elderly attorney called as a
witness by Shawver. The motion urged the court to hold that the wit-
ness was incompetent to testify. All witnesses are presumed compe-
tent to testify even if they are "feeble-mind[ed] or insan[e]." United
States v. Odom, 736 F.2d 104, 112 (4th Cir. 1984); see also Fed. R.
Evid. 601. The only permissible grounds for disqualifying a witness
as incompetent are "that the witness ‘does not have knowledge of the
matters about which he is to testify, that he does not have the capacity
to recall, or that he does not understand the duty to testify truthfully.’"
Odom, 736 F.2d at 112 (quoting United States v. Lightly,
677 F.2d
1027, 1028 (4th Cir. 1982)). "Whether the witness has such compe-
tency is a matter for determination by the trial judge after such exami-
nation as he deems appropriate and his exercise of discretion in this
regard is to be reversed only for clear error."
Id. at 112-13. The dis-
trict court did not err.
The witness in question gave testimony inculpating Beverly. At
various times during his testimony, the witness spoke very slowly and
nodded and chuckled inappropriately to the jury. The court excused
the jury and instructed the witness to stop acting in this manner. Dur-
ing voir dire examination the behavior of the witness became even
more bizarre. He had trouble recalling certain events, contradicted
himself repeatedly, and seemed to be disoriented. At one point he
could not tell the court for several minutes what day of the week it
was.
The court examined the witness to determine whether to grant the
motion to strike. The witness told the court that he suffered from
hypoglycemia and needed to eat some food to alleviate the condition.
The witness was allowed to consume some cookies given him by the
court. He said that this nourishment helped his condition. The court
decided to deny the motion to strike and to let the jury decide "for
itself whether [the testimony was] incredible or not." The court noted
that the erratic behavior of the witness would weigh heavily against
his credibility in the eyes of the jury. The witness continued to testify
and also to make inappropriate gestures and responses. The court
22 UNITED STATES v. CASSIDY
stopped the testimony repeatedly to admonish the witness to respond
in an appropriate manner.
The district court did not clearly abuse its discretion in admitting
the testimony. It is true that the witness often had trouble recalling
events or following the court’s instructions. Despite this disorienta-
tion, most of his testimony appeared lucid. The court was "much
closer than [the] court of appeals to the pulse of the trial." United
States v. Russell,
971 F.2d 1098, 1104 (4th Cir. 1992). When there is
doubt, we will respect the district court’s finding that sufficient credi-
bility existed to permit the jury to "hea[r] the testimony for what it
is worth."
Odom, 736 F.2d at 112.
We conclude that the district court did not err when it denied the
motion to strike the testimony.
X
Cassidy and Shawver challenge several aspects of their sentences.
The district court’s determinations pursuant to the Sentencing Guide-
lines are reviewed for clear error to the extent they turn primarily on
a factual determination, and "closer to de novo" to the extent they turn
primarily on the legal interpretation of a Guideline term. United
States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994) (emphasis omit-
ted).
A.
Cassidy and Shawver argue that the district court’s enhancement of
their sentences for mass marketing and relocation of their scheme pur-
suant to subsections 2F1.1(b)(3) and (6) of the Sentencing Guidelines
violates the Ex Post Facto Clause. The enhancements in question
were added to the Sentencing Guidelines in amendments that became
effective November 1, 1998. U.S. Sentencing Guidelines Manual app.
C supp., amend. 577 (2001). The Constitution forbids their applica-
tion to Cassidy and Shawver unless their offenses occurred or contin-
ued past that date. United States v. Heater, 63 F.3d 311, 331 (4th Cir.
1995).
UNITED STATES v. CASSIDY 23
There was sufficient and clear evidence that Cassidy solicited and
Shawver deposited investors’ checks in calendar year 1999. Whether
Cassidy and Shawver continued to commit specific overt acts of
"mass marketing" and "relocation" in furtherance of the scheme after
1999 has no bearing upon the proper guideline version applicable in
this case. United States v. Meitinger, 901 F.2d 27, 28-29 (4th Cir.
1990). The district court did not clearly err in concluding that
Shawver and Cassidy continued to be members of the charged con-
spiracies after November 1, 1998.
We conclude that Cassidy’s and Shawver’s offenses continued
after the date the guidelines amendment applied by the trial court
became effective. Cassidy’s and Shawver’s mass marketing and relo-
cation enhancements did not violate the Ex Post Facto clause.
B.
Cassidy and Shawver argue that the district court erred when it
enhanced their sentences for being organizers of a scheme with at
least five participants pursuant to subsection 3B1.1(a) of the Guide-
lines. We disagree.
Four conspirators were indicted: Cassidy, Shawver, Beverly and a
fourth who pleaded guilty. The district court found by a preponder-
ance of the evidence that Shawver’s hypoglycemic witness was a fifth
participant.6 Cf. Part IX supra (affirming denial of motion to strike
this witness’s testimony on competency grounds). The witness testi-
fied that he told investors that their funds were safely invested in gov-
ernment securities, and that Shawver paid him from investors’ funds.
The government expressed interest in indicting the witness based on
his trial testimony. The court did not clearly err in finding this witness
6
The district court could properly find that this witness was a co-
conspirator by a preponderance of the evidence without submitting the
question to the jury. Even after their enhancements, Cassidy’s and
Shawver’s sentences fell well below the statutory maximum sentences
for which the jury’s verdict made them eligible. United States v. Angle,
254 F.3d 514, 518 (4th Cir. 2001) (en banc) (construing Apprendi v. New
Jersey,
530 U.S. 466 (2000)).
24 UNITED STATES v. CASSIDY
to be a fifth co-conspirator. The organizer enhancement was applica-
ble.
Cassidy argues that he was not an organizer of the scheme because
he did not share in its profits and joined only after it was formed by
Shawver and Beverly. There was evidence that Cassidy profited from
the conspiracy, and the record as a whole supports the conclusion that
Cassidy was the scheme’s primary pitchman from the beginning. The
court did not clearly err in finding that Cassidy was an organizer.
Shawver argues that he was not an organizer because he did not
direct the others’ actions in the scheme and took no more than an
equal share of the profits. Shawver controlled the key accounts and
was the only conspirator licensed as a mortgage banker. Cassidy and
Beverly told investors that Shawver controlled the investments. The
record overwhelmingly supports the district court’s finding that
Shawver was an organizer.
We conclude that the district court did not clearly err when it
enhanced Cassidy’s and Shawver’s sentences for being organizers of
a scheme with at least five members.
C.
Shawver argues that the district court erroneously enhanced his
sentence pursuant to subsection 3C1.1(a) of the Guidelines for trying
to influence grand jury witnesses and giving false testimony at trial.
At least one former investor testified, under cross-examination by
Shawver, that Shawver approached him just before the investor testi-
fied before the grand jury and "tr[ied] to persuade [him] to be some-
what uncooperative with the grand jury." The district court did not
clearly err when it enhanced Shawver’s sentence for obstruction of
justice.
D.
Shawver argues that the district court erred in adjusting upward his
offense level on the money laundering counts pursuant to subsections
2S1.1(b)(2)(G) and 2S1.2(b)(2) of the 2000 Guidelines, based on a
UNITED STATES v. CASSIDY 25
determination that Shawver laundered between 2 million and 3.5 mil-
lion dollars. Shawver argues that a $500,000 wire transfer of inves-
tors’ funds and certain other transfers flowing from the First
Tennessee Bank should not have been included in this total. After a
careful review of the record, we conclude that the evidence supports
the district court’s determination of the sum involved.
Shawver argues that the evidence does not show that the $500,000
wire transfer was an act properly considered as money laundering. It
does not appear that Shawver raised this objection at sentencing.
According to the evidence, the transfer was supposedly intended to
purchase "bank guarantees" worth hundreds of millions of dollars
which proved to be fraudulent. The record does not show that the
funds transferred were ever recovered. We see no plain error in the
district court’s finding that Shawver laundered these funds.
Shawver argues that he could not be held responsible for launder-
ing the remaining First Tennessee Bank funds transfers because there
was no direct evidence that he knew they had been made. The fund
transfers came from a co-conspirator’s account. When Shawver made
this argument at sentencing, the district court rejected it on the ground
that co-conspirators’ knowledge could be imputed to Shawver. The
district court’s statement of the law is correct. United States v. Cum-
mings, 937 F.2d 941, 943-45 (4th Cir. 1991).
The district court properly adjusted Shawver’s money laundering
offense level.
XI
We affirm Defendants’ convictions and sentences.
AFFIRMED
