United States v. Spivey ( 2000 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                     No. 99-4144
    ALVIN RALPH SPIVEY,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Durham.
    Frank W. Bullock, Jr., District Judge.
    (CR-98-199)
    Submitted: March 31, 2000
    Decided: May 3, 2000
    Before LUTTIG and MOTZ, Circuit Judges,
    and BUTZNER, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER,
    L.L.P., High Point, North Carolina, for Appellant. Walter C. Holton,
    Jr., United States Attorney, Harry L. Hobgood, Assistant 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    Unpublished opinions are not binding precedent in this circuit.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:
    A jury convicted Alvin Ralph Spivey of two counts of mail fraud
    in connection with a scheme to obtain promotional merchandise from
    Philip Morris using counterfeit Marlboro uniform product code
    ("UPC") labels, in violation of 18 U.S.C.§ 1341 (West Supp. 1999),
    and 
    18 U.S.C. § 2
     (1994). The court sentenced Spivey to thirty-one
    months' imprisonment to be followed by three years of supervised
    release. The court also ordered Spivey to pay restitution to Philip
    Morris in the amount of $103,722. Spivey appeals his convictions and
    the district court's restitution order. Finding no reversible error, we
    affirm.
    I.
    Spivey first challenges the district court's unanimity instruction
    with regard to the elements of the offense, the underlying conduct,
    and whether he acted as a principal or aider and abettor. He urges this
    court to extend the Supreme Court's holding in Richardson v. United
    States, 
    119 S. Ct. 1707
    , 1709 (1999), to his mail fraud convictions
    under § 1341. Because Spivey did not object to the instructions at
    trial, he concedes that this Court's review is limited to review for
    plain error. See United States v. Brown, 
    202 F.3d 691
    , 698 & n.13
    (4th Cir. 2000); see also United States v. Olano , 
    507 U.S. 725
    , 732-
    37 (1993).
    Specifically, Spivey contends that the unanimity charge was insuf-
    ficient as to the elements of the offense, given the multiple allegations
    of mail fraud in the indictment. In reviewing a court's jury instruc-
    tions, we must examine "whether the jury charge, construed as a
    whole, adequately stat[ed] the controlling legal principle without mis-
    leading or confusing the jury." See Chaudhry v. Gallerizzo, 
    174 F.3d 394
    , 408 (4th Cir.), cert. denied, 
    120 S. Ct. 215
     (1999) (citation omit-
    2
    ted). Taken as a whole, we find no plain error in the district court's
    instructions.
    Spivey next contends, relying on Richardson, that the jury must
    agree on the conduct that supports the mail fraud charges in the
    indictment. Because of the number of acts alleged in the indictment,
    Spivey asserts that the jury may not have agreed unanimously on the
    underlying conduct. Even assuming that the failure to give a more
    specific unanimity instruction was error, the error was not plain given
    that no court has extended the reasoning in Richardson to violations
    of § 1341. See Olano, 
    507 U.S. at 734
     (defining "plain" as "synony-
    mous with `clear' or, equivalently, `obvious'").
    Finally, Spivey argues that the jury instructions on unanimity made
    it impossible to determine whether the jury convicted him as a princi-
    pal or as an aider and abettor. This argument, however, is foreclosed
    by our decision in United States v. Horton, 
    921 F.2d 540
    , 545-46 (4th
    Cir. 1990) (holding that defendant's right to unanimous verdict not
    violated by instructions permitting jury to convict defendant as princi-
    pal or aider and abettor). We therefore find no plain error in this
    regard.
    II.
    Next, Spivey challenges his convictions for mail fraud on the
    ground that the district court erred by denying his motion for judg-
    ment of acquittal under Fed. R. Crim. P. 29. We review the district
    court's decision to deny a motion for judgment of acquittal de novo.
    See United States v. Romer, 
    148 F.3d 359
    , 364 (4th Cir. 1998) (cita-
    tions omitted), cert. denied, 
    525 U.S. 1141
     (1999). Where, as here,
    the motion is based on insufficient evidence, the relevant question is
    not whether the court is convinced of guilt beyond a reasonable doubt,
    but rather whether the evidence, when viewed in the light most favor-
    able to the government, was sufficient for a rational trier of fact to
    have found the essential elements of the crime beyond a reasonable
    doubt. See United States v. Burgos, 
    94 F.3d 849
    , 862-63 (4th Cir.
    1996) (en banc); Glasser, 315 U.S. at 80. If substantial evidence
    exists to support a verdict, the verdict must be sustained. See Glasser,
    315 U.S. at 80.
    3
    We have reviewed the trial testimony and conclude that the evi-
    dence was sufficient. Spivey created the printing plates and printed
    the counterfeit UPC labels to exchange for Marlboro merchandise.
    Winford Bingham, who met Spivey at Spivey's place of employment
    on several occasions, recruited people to provide their addresses in
    exchange for retaining one of the items obtained with the counterfeit
    UPC codes. Finally, Philip Morris intercepted 125 orders mailed to
    the promotional program using the counterfeit labels. See United
    States v. Loayza, 
    107 F.3d 257
    , 260 (4th Cir. 1997) (discussing ele-
    ments of mail fraud); see also United States v. Wilson, 
    135 F.3d 291
    ,
    305 (4th Cir.) (discussing elements of aiding and abetting), cert.
    denied, 
    523 U.S. 1143
     (1998).
    While Spivey challenges the government's use of circumstantial
    evidence, it is well established that we may not review the credibility
    of witnesses or weigh the evidence. See United States v. Wilson, 
    118 F.3d 228
    , 234 (4th Cir. 1997). Here, the jury was given the opportu-
    nity to hear the government's evidence and Spivey's recitation of the
    facts. The jury's apparent refusal to believe Spivey's version of the
    facts was within its province and its guilty verdicts were supported by
    the evidence. When viewed in the light most favorable to the govern-
    ment, the evidence was sufficient to convict him of mail fraud. See
    Burgos, 
    94 F.3d at 862
    .
    III.
    Spivey also challenges the district court's imposition of restitution
    in the amount of $103,722. Because Spivey did not object at sentenc-
    ing, our review is only for plain error. See United States v. Karam,
    
    201 F.3d 320
    , 330 (4th Cir. 2000).
    Contrary to Spivey's assertion that the government did not estab-
    lish that Philip Morris' loss was directly caused by his conduct, it is
    clear from the record that Spivey's skills as a master printer were crit-
    ical to the success of the scheme to obtain merchandise with counter-
    feit UPC codes. We therefore find that the district court did not err--
    let alone plainly err--in ordering Spivey to pay $103,722 in restitu-
    tion.
    Spivey also claims that the district court should have applied the
    provisions of the Victim and Witness Protection Act of 1982
    4
    ("VWPA") in fashioning the restitution order because the mailings
    charged in the indictment occurred in 1995--before the April 24,
    1996, effective date of the Mandatory Victim Restitution Act of 1996
    ("MVRA"). Because the district court accepted the probation officer's
    recommendation to order the full amount of restitution, Spivey claims
    that application of the MVRA violated the Ex Post Facto Clause.
    Although the mailings to which Spivey refers occurred in Septem-
    ber 1995, the indictment also alleged that Spivey's criminal conduct
    included conduct that continued beyond the effective date of the
    MVRA. Specifically, Spivey printed counterfeit UPC codes in
    December 1996. In addition, about one-third of the 125 confiscated
    orders were mailed to Philip Morris after April 24, 1996. Finally,
    Spivey was convicted in October 1998 and sentenced in February
    1999. See Karam, 
    201 F.3d at
    330 n.12. On these facts, we conclude
    that there was no ex post facto violation and therefore no plain error
    in the application of the MVRA.
    IV.
    Accordingly, we affirm Spivey's convictions and sentence. We dis-
    pense 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
    5