United States v. Davis , 10 F. App'x 107 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4550
MARVIN DAVIS, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4673
MARVIN DAVIS, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-99-227)
Submitted: March 30, 2001
Decided: May 14, 2001
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
W. James Hoffmeyer, NETTLES, MCBRIDE & HOFFMEYER,
P.A., Florence, South Carolina, for Appellant. James R. Robinson,
2 UNITED STATES v. DAVIS
Assistant Attorney General, Joshua R. Hochberg, Chief, Philip Urof-
sky, Senior Trial Attorney, J. Rene Josey, United States Attorney,
Fraud Section, Criminal Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marvin Davis, Jr., was convicted by a jury of committing mail
fraud, in violation of 18 U.S.C. § 1341 (1994), conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 371 (1994), and conspiracy to
commit money laundering, in violation of 18 U.S.C.A. § 1956(h)
(West 2000). Davis timely appealed his convictions and sentence.
Finding no error, we affirm.
Davis first contends that the district court erred in admitting evi-
dence regarding Unction, Ltd., under Fed. R. Evid. 404(b). Rule
404(b) allows evidence of prior bad acts to establish intent, provided
four criteria are met. The evidence must be (1) relevant to an issue
other than character, (2) necessary, (3) reliable, and (4) its probative
value must outweigh its prejudicial effect. United States v. Wells, 163
F.3d 889, 895 (4th Cir. 1998).
The evidence regarding Unction, Ltd., was relevant to Davis’s
intent. See United States v. Van Metre, 150 F.3d 339, 350 (4th Cir.
1998). The Unction, Ltd. evidence was also necessary, see id. at 351,
and reliable. See United States v. Aramony, 88 F.3d 1369, 1378 (4th
Cir. 1996). Furthermore, we conclude that the Unction, Ltd., evidence
was not unduly prejudicial. See Wells, 163 F.3d at 896; United States
v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995); United States v. Queen,
132 F.3d 991, 997 (4th Cir. 1997). Accordingly, the district court
properly admitted the Unction, Ltd., evidence pursuant to Rule
404(b).
UNITED STATES v. DAVIS 3
Davis next contends that the district court erred in excluding prof-
fered expert testimony concerning the complexities of offshore busi-
nesses as irrelevant. This court reviews that ruling for abuse of
discretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993).
Relevant evidence, defined as evidence having any tendency to
make the existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it would be
without the evidence, is generally admissible; evidence that is not rel-
evant is not admissible. Fed. R. Evid. 401, 402. Davis offered the
expert testimony in an attempt to negate the inference of criminal
intent. We agree with the district court, however, that the relative
complexities of offshore business do not bear upon Davis’s state of
mind with regard to the crimes charged. Thus, we find that the district
court did not abuse its discretion in excluding that testimony as irrele-
vant.
Davis next contends that the district court erred in refusing to give
an instruction on entrapment. We disagree. To be entitled to a
requested jury instruction, the defendant must establish a sufficient
evidentiary foundation to support the instruction. United States v.
Lewis, 53 F.3d 29, 32 n.8 (4th Cir. 1995). To establish entrapment,
the defendant must show that (1) the government induced him or her
to commit a crime, and (2) the person induced had no predisposition
to engage in the criminal act. United States v. Sarihifard, 155 F.3d
301, 308 (4th Cir. 1998). Even assuming that Davis could demon-
strate a sufficient evidentiary foundation with regard to the first prong
of the entrapment defense, he offers no evidence, nor is there any in
the record, that he was not predisposed to engage in the criminal
activities for which he was convicted. Thus, the district court cor-
rectly denied an entrapment instruction.
Davis next contends that the district court erred in giving a willful
blindness instruction. Davis first declares that the district court erred
because there was "no evidence that Davis ever took any action to
avoid learning anything." Br. at 27. No such evidence is required,
however; rather, the instruction need be supported only by evidence
sufficient to support an inference of willful blindness. See United
4 UNITED STATES v. DAVIS
States v. Whittington, 26 F.3d 456, 463 (4th Cir. 1994). We find the
record sufficient to support such an inference.
Davis also contends that the district court’s willful blindness
instruction erroneously permitted the jury to convict Davis on the the-
ory that Davis should have known about the fraud, instead of requir-
ing the jury to find the specific intent required by the statute. The
record, however, reveals that the district court adequately and prop-
erly instructed the jury on the Government’s burden of proof.
Davis next contends that the district court erred in omitting a multi-
ple conspiracy charge from its jury instructions. Davis did not request
such an instruction at trial. Therefore, this court reviews the omission
for plain error. Fed. R. Crim. P. 52(b); United States v. David, 83 F.3d
638, 641 (4th Cir. 1996). For this court to notice plain error, Davis
must demonstrate that (1) an error occurred, (2) the error was plain,
(3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial pro-
ceedings. United States v. Olano, 507 U.S. 725, 732 (1993). Under
the first prong of plain error analysis, we conclude that the district
court did not commit error by omitting a multiple conspiracy charge.
See United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000).
Davis next contends that the district court erred in not giving an
instruction on the good faith defense to money laundering and con-
spiracy to commit money laundering. Davis did not request such an
instruction at trial, and therefore, this court reviews the alleged omis-
sion for plain error. David, 83 F.3d at 641. In determining whether the
district court erred in its instructions to the jury, this court reviews the
jury instructions in their entirety and as part of the whole trial, and
focuses on whether the district court adequately instructed the jury
regarding the elements of the offense and the defendant’s defenses.
United States v. Wilson, 198 F.3d 467, 469 (4th Cir. 1999). Under this
standard of review, we conclude the district court’s instructions ade-
quately addressed Davis’s good faith defense. The district court prop-
erly explained the good faith defense when charging the jury on the
mail fraud counts and later told the jury that the same law applied to
the money laundering counts. That was sufficient.
Davis next contends that audio-taped recordings of meetings
between himself and government agents were obtained in violation of
UNITED STATES v. DAVIS 5
the Fourth Amendment, and that the district court erred in admitting
them into evidence. Specifically, Davis asserts that the recordings
were unconstitutionally obtained because there was no warrant or
court order authorizing them. We find, however, that the contested
recordings do not implicate the Fourth Amendment. See Askin v.
McNulty, 47 F.3d 100, 105 (4th Cir. 1995).
Davis next contends that the district court erred in denying his
motion for acquittal on all counts. Specifically, Davis declares that the
evidence was insufficient to establish the specific intent element of
each of the crimes for which he was convicted. A jury’s verdict must
be upheld, however, if there is substantial evidence in the record to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942). After
reviewing the record in the light most favorable to the Government,
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc),
we conclude that the evidence was sufficient to allow a reasonable
finder of fact to conclude beyond a reasonable doubt that Davis pos-
sessed the criminal intent requisite to his convictions.
Davis next contends that the district court erred in determining his
base offense level under U.S. Sentencing Guidelines Manual § 2S1.1
(1998) to be 23 and not 20. Davis was convicted in Count 18 of con-
spiring to engage in "promotion" money laundering, in violation of 18
U.S.C.A. § 1956(h), which provides that the penalty for such a con-
spiracy is the same as the penalty for the object of the conspiracy.
Because Davis was convicted of conspiring to engage in "promotion"
money laundering in violation of 18 U.S.C.A. § 1956 (a)(1)(A)(i) and
(B)(i), U.S. Sentencing Guidelines Manual § 2S1.1(a)(1) applies and
mandates a base offense level of 23. See United States v. Brace, 145
F.3d 247, 264 (5th Cir. 1998) (holding that the proper base offense
level for conspiracy to violate § 1956(a)(1)(A) is 23), United States
v. House, 110 F.3d 1281, 1287-88 (7th Cir. 1997) (same), United
States v. Acanda, 19 F.3d 616, 619-20 (11th Cir. 1994) (same),
United States v. Restrepo, 936 F.2d 661, 665 (2d Cir. 1991) (same).
Davis also contends that the district court’s determination of the
base offense level violated Apprendi v. New Jersey, 530 U.S. 466(2000). Apprendi is only implicated, however, when a defendant
receives a sentence in excess of the statutory maximum, and not by
the judge’s exercise of discretion under the Sentencing Guidelines.
6 UNITED STATES v. DAVIS
United States v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000), cert.
denied, ___ U.S. ___, 2001 WL 185105 (U.S. Mar. 19, 2001) (No.
00-8591). The district court sentenced Davis to forty-six months, a
sentence well below the statutory maximum provided in § 1956.
Thus, the district court’s action represented a legitimate exercise of
its sentencing discretion and did not result in the imposition of an
unconstitutional sentence.
Finally, Davis contends that the district court erred in refusing to
give him a reduction pursuant to USSG § 3B1.2 for his allegedly
minor role in the offenses. This court reviews a district court’s refusal
to grant a reduction pursuant to USSG § 3B1.2 for clear error. United
States v. Edwards, 188 F.3d 230, 237 (4th Cir. 1999). Having
reviewed the record, we are convinced that it supports the district
court’s decision not to grant a role reduction under § 3B1.2.
Accordingly, we affirm Davis’ convictions and sentence in all
respects. We dispense with oral argument because the facts and legal
contentions are adequately represented before the court and argument
would not aid the decisional process.
AFFIRMED