United States v. Bermes , 9 F. App'x 207 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4892
GUY A. BERMES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-98-460)
Submitted: April 27, 2001
Decided: May 23, 2001
Before LUTTIG, MICHAEL, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kenneth M. Mathews, Columbia, South Carolina, for Appellant. Scott
N. Schools, United States Attorney, Eric Wm. Ruschky, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BERMES
OPINION
PER CURIAM:
Guy Bermes appeals his convictions after a jury trial of one count
of wire fraud, in violation of 18 U.S.C. §§ 1343, 2 (1994) and one
count of transmitting and causing to be transmitted in interstate com-
merce a security that was taken by fraud, in violation of 18 U.S.C.
§§ 2314, 2 (1994). On appeal, Bermes asserts three arguments that the
evidence was insufficient to establish his guilt. Because we conclude
the evidence was sufficient, we affirm.
Bermes’ convictions resulted from his activities in soliciting invest-
ments purportedly to finance the development of a resort project on
Great Exuma island in the Bahamas. In particular, the charged
offenses resulted from Bermes’ actions related to investments of
$25,000 each by two investors.
This court reviews a jury verdict for sufficiency of the evidence by
determining whether there is substantial evidence, when viewed in the
light most favorable to the Government, to support the verdict. See
Glasser v. United States, 315 U.S. 60, 80 (1942). In determining
whether the evidence in the record is substantial, this court inquires
whether there is evidence that a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a defendant’s
guilt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). This court "must consider circumstantial as well as direct evi-
dence, and allow the government the benefit of all reasonable infer-
ences from the facts proven to those sought to be established." See
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). "[A]n
appellate court’s reversal of a conviction on grounds of insufficient
evidence should be ‘confined to cases where the prosecution’s failure
is clear.’" United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). In evaluating
the sufficiency of the evidence, this Court does not review the credi-
bility of the witnesses and assumes that the jury resolved all contra-
dictions in the testimony in favor of the Government. United States
v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Bermes first asserts that the evidence was insufficient to prove that
he formed a scheme to defraud others and used the interstate wires to
UNITED STATES v. BERMES 3
effect such a scheme, as charged in count one. To prove wire fraud
in violation of 18 U.S.C. § 1343, the Government must prove (1) the
existence of a scheme to defraud that involved a material falsehood,
and (2) the use of interstate wire communications to facilitate the
scheme. See Neder v. United States, 527 U.S. 1, 25 (1999); United
States v. ReBrook, 58 F.3d 961, 966 (4th Cir. 1995). The Government
must also prove fraudulent intent. See 18 U.S.C. §§ 1341, 1343
(1994). Fraudulent intent may be inferred from the totality of the cir-
cumstances rather than by direct evidence. See United States v. Ham,
998 F.2d 1247, 1254 (4th Cir. 1993). Indeed, proof of this element of
the offense is satisfied by "the existence of a scheme which was ‘rea-
sonably calculated to deceive persons of ordinary prudence and com-
prehension,’ and this intention is shown by examining the scheme
itself." United States v. Green, 745 F.2d 1205, 1207 (9th Cir. 1984)
(quoting United States v. Bohonus, 628 F.2d 1167, 1172 (9th Cir.
1980)). While an investor may be defrauded by "deliberately false
statements of fact," United States v. Painter, 314 F.2d 939, 943 (4th
Cir. 1963), "[f]raudulent intent is shown if a representation is made
with reckless indifference to its truth or falsity." United States v.
Cusino, 694 F.2d 185, 187 (9th Cir. 1982).
In this case, the evidence showed an extensive and continuing pat-
tern of deceit and falsifications by Bermes that began with his initial
negotiations regarding the development project. Moreover, Bermes
repeatedly failed to perform obligations he voluntarily assumed in
agreements he entered into with the property owner and investors.
Our review of the evidence convinces us that it establishes that
Bermes developed a scheme to defraud.
Bermes next contends that the evidence was insufficient to prove
that he used interstate wire transfers to further the scheme to defraud.
The defendant need not specifically cause the use of the mails or
interstate wires; it is sufficient if the use of these modes of transmis-
sion is reasonably foreseeable in the execution of the scheme. See
United States v. Loayza, 107 F.3d 257, 265 (4th Cir. 1997). One
investor, at Bermes’ instruction, deposited his check in Bermes’
investment account at a broker’s office in Columbia, South Carolina.
Bermes’ account with this company was originated, and business
transacted, through the company’s office in Knoxville, Tennessee,
where Bermes resided. The record contains evidence sufficient to
4 UNITED STATES v. BERMES
show that Bermes was aware that use of interstate wires would be an
incident of the scheme, as Bermes instructed the investor to deposit
his check in Bermes’ account and provided the account number, and
then used the money deposited into his account shortly after it was
deposited. It is obvious that in order for Bermes to access this money
in Tennessee, an interstate wire transfer of the deposit in South Caro-
lina was required. We are convinced that the evidence demonstrates
that use of the interstate wire transfer of these funds was fully antici-
pated by Bermes.
Bermes final argument on appeal is that the evidence is insufficient
to prove that the $25,000 investment that was the subject of count two
of the indictment, was the product of a fraudulent act by Bermes. In
the context of § 2314, this Court has held that "fraud is a broad term,
which includes false representations, dishonesty, and deceit. It may
result from reckless and needless representation even when not made
with a deliberate intent to deceive." United States v. Grainger, 701
F.2d 308, 311 (4th Cir. 1983). As discussed above, an abundance of
evidence demonstrates that the second investor’s transmittal of a
$25,000 cashier’s check to Bermes by Federal Express resulted from
Bermes’ misrepresentations and deceit. This argument is without
merit.
We are convinced that substantial evidence supports Bermes’ con-
victions. Accordingly, we affirm Bermes’ convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court.
AFFIRMED