Filed: Jan. 05, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4299 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARY ELLEN DOWDELL, Defendant - Appellant. No. 08-4300 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK SMYTH, Defendant - Appellant. No. 08-4308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY SMYTH, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4299 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARY ELLEN DOWDELL, Defendant - Appellant. No. 08-4300 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK SMYTH, Defendant - Appellant. No. 08-4308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY SMYTH, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARY ELLEN DOWDELL,
Defendant - Appellant.
No. 08-4300
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK SMYTH,
Defendant - Appellant.
No. 08-4308
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY SMYTH,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:07-cr-00010-nkm-6; 3:07-cr-00010-nkm-8;
3:07-cr-00010-nkm-9)
Submitted: November 24, 2008 Decided: January 5, 2009
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David A. Eustis, EUSTIS & GRAHAM, PC, Charlottesville, Virginia;
B. Stephanie Commander, Charlottesville, Virginia; David L.
Heilberg, Charlottesville, Virginia, for Appellants. Julia C.
Dudley, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In early 1998, Terry Dowdell started operating a Ponzi
scheme through his company, Vavasseur Corporation. Federal
investigations of the scheme ensued and on November 19, 2001,
Dowdell’s assets were frozen through a temporary restraining
order which was later extended through a series of orders
culminating in a permanent injunction. Terry Dowdell eventually
pled guilty to securities and wire fraud charges.
In April 2007, a federal grand jury charged two
brothers, Mark and Gregory Smyth, and Terry’s wife, Mary Ellen
Dowdell, in Count Three of a multi-count, multi-defendant
superseding indictment with conspiracy to commit wire fraud, in
violation of 18 U.S.C. §§ 1343, 2 (2006). Specifically, the
indictment charged that over $800,000 in funds subject to the
orders freezing Terry Dowdell’s assets were wired to the Smyth
brothers and that Mary Dowdell received and negotiated checks
drawn on the accounts into which these funds were transferred
and that she otherwise benefited from the funds when they were
used to make payments on a credit card account she held with her
husband.
The Smyth brothers each pled guilty to aiding and
abetting to commit wire fraud. A jury convicted Mary Dowdell of
conspiracy to commit wire fraud. The district court sentenced
Gregory Smyth to thirty-seven months’ imprisonment, Mark Smyth
3
to forty-four months’ imprisonment, and Dowdell to sixty months’
imprisonment. Gregory and Mark Smyth appeal from their
sentences. Mary Dowdell appeals from her conviction and
sentence. The appeals have been consolidated.
We first address Dowdell’s challenge to her
conviction. Dowdell argues that the district court erred by
denying her Fed. R. Crim. P. 29 motion for judgment of acquittal
because there was scant evidence that she specifically received
and negotiated the series of checks made payable to her from the
Smyths or that she had any involvement in the payments made on
the credit card.
We review de novo the district court’s denial of
Dowdell’s Rule 29 motion. United States v. Reid, 523 F.3d 310,
317 (4th Cir. 2008). Where, as here, the motion was based on a
claim of insufficient evidence, “[t]he verdict of the jury must
be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.” Glasser v.
United States,
315 U.S. 60, 80 (1942);
Reid, 523 F.3d at 317.
To prove conspiracy to commit wire fraud, the Government need
only establish that the defendant knowingly and voluntarily
agreed to participate in a scheme to defraud and that the use of
the interstate wires in furtherance of the scheme was reasonably
foreseeable. United States v. Hasson,
333 F.3d 1264, 1270 (11th
Cir. 2003).
4
Viewing the evidence in the light most favorable to
the Government, there was substantial evidence that Dowdell
knowingly and voluntarily agreed to participate in a scheme to
defraud and that the use of the interstate wires in furtherance
of the scheme was reasonably foreseeable. The Government
presented evidence that the assets of Dowdell’s husband, Terry,
and his alter-ego, Vavasseur Corporation, were frozen
continuously from November 19, 2001. Dowdell herself was named
as a relief defendant in the order and received a copy of the
order the day it issued. The Government also introduced
evidence of the various transfers of Vavasseur funds from the
Smyth brothers to Mary personally, to her company, Willowood,
and to the credit card account held by the Dowdells and evidence
of Mary’s personal involvement in cashing checks issued by the
Smyths. Viewing this and the other trial evidence of
transfers of funds to Mary’s benefit from the time that the
asset freeze went into effect, we find that the evidence was
sufficient to support Mary’s conviction for conspiracy to commit
wire fraud.
Turning to the sentencing issues, we review a sentence
imposed by the district court for reasonableness. United
States v. Booker, 543 U.S. 220, 260-61 (2005). In sentencing a
defendant post-Booker, a district court must correctly calculate
the appropriate advisory guidelines range. Gall v. United
5
States, 128 S. Ct. 586, 596 (2007) (citing Rita v. United
States, 127 S. Ct. 2456, 2465 (2007)). The court then must
consider that range in conjunction with the 18 U.S.C. § 3553(a)
(2006) factors. Gall, 128 S. Ct. at 596. In imposing a
sentence, the court “may not presume that the guidelines range
is reasonable,” but rather “must make an individualized
assessment based on the facts presented.”
Id. at 596-97. The
district court also “must adequately explain the chosen sentence
to allow for meaningful appellate review.”
Id. at 597.
Appellate review of a district court’s imposition of a
sentence (whether inside or outside of the guidelines range) is
for abuse of discretion. Id.; see also United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). The appellate court
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence--including
an explanation for any deviation from the Guidelines
range. Assuming that the district court’s sentencing
decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion
standard. When conducting this review, the court
will, of course, take into account the totality of the
circumstances, including the extent of any variance
from the Guidelines range.
Gall, 128 S. Ct. at 597.
6
Turning first to Dowdell’s sentence, the district
court determined that her base offense level was six, under U.S.
Sentencing Guidelines Manual § 2B1.1(a)(2) (2007). She received
a fourteen-level increase under USSG § 2B1.1(b)(1)(H) because
the offense involved a loss amount of more than $400,000 and
less than $1 million. Because the offense involved the
violation of a court order, Dowdell’s offense level was raised
an additional two levels pursuant to USSG § 2B1.1(b)(8)(C). The
offense level was raised two more levels under USSG
§ 2B1.1(b)(9)(B) because a substantial part of the scheme was
committed outside of the United States. Finally, the district
court applied a two-level increase in offense level under USSG
§ 3C1.1 for obstruction of justice because the court found that
Dowdell committed perjury when she testified at trial. Dowdell
had no criminal history points. With a total offense level of
twenty-four and criminal history category I, Dowdell’s guideline
range was sixty-three to seventy-eight months’ imprisonment.
USSG ch. 5, pt. A (sentencing table). However, because the
then-applicable statutory maximum sentence of five years under
§ 1343 * was less than the guideline range, the statutory maximum
became the guideline range. See USSG § 5G1.1.
*
The statutory maximum for § 1343 offenses has since been
raised to twenty years. See 18 U.S.C.A. § 1343 (West Supp.
2008).
7
Dowdell challenges her sentence on several grounds.
First, she contends that the district court erred by imposing
the obstruction of justice enhancement. A sentencing court must
impose a two-level adjustment under § 3C1.1 if the defendant
willfully obstructed or impeded the administration of justice
during the investigation, prosecution, or sentencing of the
offense of conviction. In the case of perjury, the obstruction
of justice increase applies if the court finds that the
defendant gave false testimony under oath “concerning a material
matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.
United States v. Dunnigan, 507 U.S. 87, 94 (1993); USSG § 3C1.1
cmt. n.4(b). In the face of substantial evidence of her guilt,
Dowdell took the stand and flatly denied any wrongdoing. We
find no clear error in the § 3C1.1 enhancement.
Dowdell also challenges the inclusion of a $512,000
check she co-signed in determining the loss attributable to her
for relevant conduct, contending that this transfer was not
related to the conspiracy. Under USSG § 1B1.3(a), unless
otherwise specified, relevant conduct shall be determined based
on (1) “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant,” and (2) “in the case of a jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or
8
enterprise undertaken by the defendant in concert with others,
whether or not charged as a conspiracy) all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” USSG § 1B1.3(a).
Uncharged crimes may be considered “relevant conduct” for
sentencing purposes, as can charges that were dismissed or for
which the defendant was acquitted. United States v. Watts, 519
U.S. 148, 155-56 (1997).
The evidence presented at trial supported a finding
that the transfer of the $512,000 was related to the conspiracy.
The day after her husband’s assets were frozen, Dowdell
facilitated the transfer of $512,000 from an account over which
Terry had signatory authority into an account over which he had
no such authority. Although this particular transaction was not
charged in the indictment and did not itself include a wire
transfer, it reflects the general conspiracy charged in the
indictment to move funds in accounts covered by the asset freeze
into other accounts where the Dowdell family and others could
benefit from them. We therefore conclude that the district
court did not err by including the $512,000 in the loss
calculation.
Finally, Dowdell argues that the district court failed
to adequately consider the § 3553(a) factors. A district court’s
explanation for the sentence it imposes must be sufficient to
9
enable the appellate court to effectively review its
reasonableness, but need not mechanically discuss all the
factors listed in § 3553(a). United States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006). The court’s explanation
should indicate that it considered the § 3553(a) factors and the
arguments raised by the parties.
Id. This court does not
evaluate the adequacy of the district court’s explanation “in a
vacuum,” but also considers “[t]he context surrounding a
district court’s explanation.”
Id. at 381.
The district court correctly calculated Dowdell’s
guideline range, treated the guidelines as advisory, and
considered the § 3553(a) factors. The court sentenced her to
the statutory maximum, which was her guideline range. We find
that Dowdell presented no information to rebut the presumption
that her within-guideline sentence is reasonable.
The guideline calculations for the Smyth brothers were
identical. The base offense level was six, under U.S.
Sentencing Guidelines Manual § 2B1.1(a)(2) (2007). This offense
level was increased by fourteen levels, pursuant to USSG
§ 2B1.1(b)(1)(H) because the offense involved more than
$400,000, but less than $1 million. Because the offense
involved the violation of a court order, the offense level was
raised an additional two levels pursuant to USSG
§ 2B1.1(b)(8)(C). The offense level was raised an additional
10
two levels under USSG § 3C1.1 for obstruction of justice for
providing a false and misleading accounting of $500,000 the
brothers received from Terry Dowdell and Vavasseur. The
brothers also received a two-level downward adjustment in
offense level pursuant to USSG § 3E1.1(a) for acceptance of
responsibility.
Neither brother had any criminal history points. With
a total offense level of twenty-two and criminal history
category I, each brother’s guideline range was forty-one to
fifty-one months’ imprisonment.
In Gregory Smyth’s case, the Government asked the
court to consider that he pled guilty and convinced his brother
to plead guilty, saving the Government and the court time from
preparing for Mark Smyth’s trial. Stating that it had
considered the § 3553(a) factors and the advisory guidelines,
the court sentenced Gregory Smyth to thirty-seven months in
prison, four months below the bottom of the guideline range.
Mark Smyth contended that it was he who convinced his
brother to plead guilty. After considering the § 3553(a)
factors and the advisory guidelines, the court initially planned
to sentence Mark Smyth to fifty-one months in prison, the top of
the guideline range. However, Mark Smyth asserted that it was
he who convinced his brother to plead guilty and to avoid a
gross disparity in sentences, the court ultimately sentenced
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Mark Smyth to forty-four months in prison, a sentence in the
middle of his guideline range.
On appeal, the Smyths argue that the district court
erred by applying USSG § 3C1.1 to increase their offense levels
for obstruction of justice. This enhancement was based on the
brothers’ false accounting of the $500,000 they received from
Vavasseur that they presented to Terry Dowdell.
When they prepared the accounting, the Smyths were
well aware that Terry Dowdell was the lead defendant in a
pending civil action filed by the SEC in federal court involving
the mishandling of funds. They knew that, in response to Terry
Dowdell’s admissions that Vavasseur was a Ponzi scheme, the
court issued an order shutting down the company and freezing
Terry Dowdell’s assets. They also knew that the SEC was
interested in the $500,000 that the Smyths received. They sent
Dowdell a false accounting of the funds, knowing that this
information was going to “the lawyers.”
The relevant guideline commentary to USSG § 3C1.1
lists “producing or attempting to produce a false, altered, or
counterfeit document or record during an official investigation
or judicial proceeding” as a ground for the obstruction
adjustment. USSG § 3C1.1 cmt. n.4(c). The brothers claim that
the enhancement should not apply because they did not provide
the false accounting to any court, law enforcement officer, or
12
any other government official or entity, but rather to Terry
Dowdell and his attorney.
Even though the brothers sent the false information to
private individuals, they knew that it would be used in
connection with a federal court case. A preponderance of the
evidence supported the district court’s conclusion that the
purpose of the letter was to obstruct justice by deceiving the
SEC about these funds. Accordingly, we find that the district
court properly applied the § 3C1.1 enhancement to each of the
Smyths.
Finally, like Mary Dowdell, the Smyths argue that the
district court failed to adequately address the § 3553(a)
factors. We find that district court correctly calculated the
Smyth brothers’ respective guideline ranges, treated the
guidelines as advisory, and considered the § 3553(a) factors.
We find that Mark Smyth failed to rebut the presumption that his
within-guideline sentence is reasonable. We further find
Gregory Smyth’s below-guideline sentence to be reasonable.
For these reasons, we affirm Mary Dowdell’s conviction
and sentence and affirm Gregory and Mark Smyth’s sentences. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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