Filed: Jul. 01, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4103 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOHN ALVIS JACKSON, JR., Defendant – Appellant. No. 07-4094 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LARRY ANDREW CAREY, Defendant – Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 08-263) Submitted: March 27, 2009 Decided: July 1, 2009 Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges. Affirmed in part, vacated in
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4103 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOHN ALVIS JACKSON, JR., Defendant – Appellant. No. 07-4094 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LARRY ANDREW CAREY, Defendant – Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 08-263) Submitted: March 27, 2009 Decided: July 1, 2009 Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges. Affirmed in part, vacated in ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4103
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN ALVIS JACKSON, JR.,
Defendant – Appellant.
No. 07-4094
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY ANDREW CAREY,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 08-263)
Submitted: March 27, 2009 Decided: July 1, 2009
Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Anthony F. Anderson, Melissa W. Friedman, ANDERSON & FRIEDMAN,
Roanoke, Virginia, for Appellant John Alvis Jackson, Jr.; Joseph
A. Sanzone, SANZONE & BAKER, P.C., Lynchburg, Virginia, for
Appellant Larry Andrew Carey. John L. Brownlee, United States
Attorney, Jennie L. M. Waering, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia; Thomas E. Booth, Amanda L. Riedel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case is on remand from the Supreme Court of the United
States, see Jackson v. United States, 129 S. Ct. 1307 (2009),
which vacated our decision in United States v. Jackson,
524 F.3d
532 (4th Cir. 2008). In that decision, we affirmed, inter alia,
the defendants’ convictions on two counts of theft from a
pension plan covered by the Employee Retirement Income Security
Act of 1974 (“ERISA”), in contravention of 18 U.S.C. § 664 (the
“ERISA theft offenses”). Essential to our affirmance of the
convictions on the ERISA theft offenses, we agreed with the
district court and the government that unpaid employer ERISA
pension plan contributions constitute “assets” of the plan.
The defendants filed a petition for writ of certiorari in
the Supreme Court, and the Court requested a response from the
government. In the government’s brief, the Solicitor General
confessed error in our decision with respect to the ERISA theft
offenses, explaining that, “[a]lthough the government argued in
the courts below that unpaid employer contributions are plan
assets, the government now agrees with petitioners [that such
unpaid contributions are not assets of an ERISA plan].” Brief
for the United States at 9-10, Jackson v. United States, 129 S.
Ct. 1307 (2009) (No. 08-263). The Court granted the defendants’
petition for writ of certiorari and, on the basis of the
government’s confession of error, vacated our decision and
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remanded the case “for further consideration in light of the
position asserted by the Solicitor General in his brief.”
Jackson, 129 S. Ct. at 1307.
As explained below, we vacate the defendants’ convictions
on the ERISA theft offenses, as well as their sentences, and
remand to the district court so that it may consider in the
first instance the government’s new position and its confession
of error. We affirm, however, the defendants’ remaining
convictions.
I.
The defendants, John Alvis Jackson, Jr. and Larry Andrew
Carey, were prosecuted in the Western District of Virginia on
multiple fraud and theft offenses. In addition to the ERISA
theft offenses, the defendants were convicted by a jury in March
2006 of the following:
● Two counts of bank fraud, in contravention of 18
U.S.C. § 1344 (the “bank fraud offenses”);
● Five counts of wire fraud, in violation of 18
U.S.C. § 1343 (the “wire fraud offenses”);
● A single count of making false statements in
ERISA-mandated documents, in contravention of 18
U.S.C. § 1027 (the “ERISA false statement
offense”); and
● A single count of theft from a health care
benefit program, in violation of 18 U.S.C. § 669.
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Jackson was also convicted of conspiracy to commit various
federal offenses, in violation of 18 U.S.C. § 371.
The district court sentenced the defendants in January
2007. For purposes of the Sentencing Guidelines, the court
grouped all of each defendant’s offenses, including the ERISA
theft offenses, resulting in advisory Guidelines ranges of 108
to 135 months for Jackson and 87 to 108 months for Carey. These
ranges were predicated, in part, on offense level increases for
causing a loss exceeding $10 million (including the loss amount
attributable to the ERISA theft offenses); for jeopardizing the
safety and soundness of the pension plan; and for embezzling,
while acting as a fiduciary, from the pension and health care
benefit plans. The court sentenced Jackson to 108 months and
Carey to 87 months, at the bottom of their respective advisory
Guidelines ranges.
On appeal, the defendants contested their convictions on
the ERISA theft offenses (Counts Eleven and Twelve) on the
ground, inter alia, that unpaid employer contributions are not
assets of an ERISA plan so as to subject them to criminal
liability under 18 U.S.C. § 664. The defendants also challenged
the sufficiency of the evidence in support of certain of their
other convictions. More specifically, both defendants
challenged the evidence on a bank fraud offense (Count Two);
Jackson challenged the evidence on the other bank fraud offense
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(Count One), as well as on each of the wire fraud offenses
(Counts Three through Seven); and Carey challenged the evidence
on the ERISA false statement offense (Count Ten). Finally, the
defendants raised numerous contentions of sentencing error,
including the contention that, because their convictions on the
ERISA theft offenses were improper, so were the increases in
their Sentencing Guidelines offense levels for jeopardizing the
safety and soundness of the pension plan. We rejected all of
the defendants’ arguments and, thus, affirmed their convictions
and sentences. See United States v. Jackson, 524 F.3d 532 (4th
Cir. 2008).
II.
A.
The government, having now decided that it erred in
pursuing the ERISA theft offenses and that we erred in affirming
those convictions, confessed error in the Supreme Court. See
Young v. United States, 315 U.S. 257, 258 (1942) (recognizing
that “[t]he public trust reposed in the law enforcement officers
of the Government requires that they be quick to confess error
when, in their opinion, a miscarriage of justice may result from
their remaining silent”). Nevertheless, the government’s
“confession does not relieve [us] of the performance of the
judicial function.”
Id. Although “[t]he considered judgment of
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the [government] that reversible error has been committed is
entitled to great weight, . . . our judicial obligations compel
us to examine independently the errors confessed.” Id. at 258-
59.
The government’s confession of error implicates the
propriety not only of the defendants’ convictions on the ERISA
theft offenses, but also of their sentences. Because the
district court determined, as did we, that — contrary to the
position now being espoused by the government — unpaid employer
contributions constitute ERISA plan assets, we deem it prudent
to remand so that the district court may consider in the first
instance the government’s confession of error. Accordingly, we
vacate the defendants’ convictions on the ERISA theft offenses,
as well as their sentences, and remand for such other and
further proceedings as may be appropriate. Cf. United States v.
Matthews (In re Matthews), 395 F.3d 477, 483 (4th Cir. 2005)
(remanding for district court to consider in first instance new
theory raised by government on appeal).
B.
As for the defendants’ remaining convictions, we stand by
our rejection of their challenges to the sufficiency of the
evidence on certain specified counts. In so doing, we note our
ongoing agreement with the district court’s analysis in denying
the defendants’ Federal Rule of Criminal Procedure 29 motions
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for judgments of acquittal on those counts. See United States
v. Jackson, No. 6:04-cr-70118 (W.D. Va. June 7, 2006). We
further observe that the government’s confession of error with
respect to the ERISA theft offenses does not implicate the
propriety of the other challenged convictions. Thus, we affirm
the defendants’ convictions except on the ERISA theft offenses.
III.
Pursuant to the foregoing, we vacate the defendants’
convictions on the ERISA theft offenses, as well as their
sentences, and remand for such other and further proceedings as
may be appropriate. We affirm the defendants’ other
convictions.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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