United States v. Snyder , 365 F. App'x 508 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBIN NEIL SNYDER; MORTGAGE BANKERS, LTD.,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00155-CCB-1)
Submitted: January 22, 2010 Decided: February 18, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan A. Gladstone, Annapolis, Maryland, for Appellant Robin
Neil Snyder. Rod J. Rosenstein, United States Attorney, Martin
J. Clarke, Michael J. Leotta, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robin Neil Snyder and Mortgage Bankers, Ltd., appeal
the convictions on thirteen counts of wire fraud and aiding and
abetting such fraud, in violation of 18 U.S.C.A. §§ 1343, 2
(West 2000 & Supp. 2009), one count of money laundering and
aiding and abetting such conduct, in violation of 18 U.S.C.
§§ 1956(a)(1), 2 (2006), and one count of obstruction of justice
and aiding and abetting such conduct, in violation of 18 U.S.C.
§§ 1512(c)(2), 2 (2006). Snyder claims the district court erred
in joining Counts Eighteen and Nineteen with the other counts
and not granting his motion to sever. He further claims the
court abused its discretion in denying his motion for a new
trial and the court clearly erred in determining for sentencing
purposes the amount of actual and intended loss. Finding no
error, we affirm.
Rule 8(a) of the Federal Rules of Criminal Procedure
provides that two or more offenses may be charged in the same
indictment when the offenses “are of the same or similar
character or are based on the same act or transaction or on two
or more acts or transactions connected together or constituting
parts of a common scheme or plan.” This court reviews de novo
the district court’s refusal to grant a misjoinder motion to
determine whether the initial joinder of the offenses was proper
under Rule 8(a). United States v. Mackins, 315 F.3d 399, 412
2
(4th Cir. 2003). If joinder was proper, review of the denial of
a motion to sever is for abuse of discretion under Fed. R. Crim.
P. 14. Id. If joinder was improper, the court “review[s] this
nonconstitutional error for harmlessness, and reverse[s] unless
the misjoinder resulted in no ‘actual prejudice’ to the
defendants ‘because it had [no] substantial and injurious effect
or influence in determining the jury’s verdict.’” Mackins, 315
F.3d at 412 (quoting United States v. Lane, 474 U.S. 438, 449
(1986) (first and second alteration added)).
Because of the prospect of duplicating witness
testimony, impaneling additional jurors or wasting limited
judicial resources, joinder is the rule rather than the
exception. United States v. Hawkins, 589 F.3d 694, __, 2009 WL
4906678, *5 (4th Cir. 2009). Joinder of multiple charges
involving the same statute is “unremarkable”. Id., 2009 WL
4906678, *7 (citing United States v. Acker, 52 F.3d 509, 514
(4th Cir. 1995) (courts routinely allow joinder of bank robbery
charges against the same defendant)). Joinder on unrelated
charges, however, raises the prospect that the Defendant may be
convicted based upon considerations other than the facts of the
charged offense. Id., 2009 WL 4906678, *5.
We find no error in joining Counts Eighteen and
Nineteen with the other counts. Count Eighteen was of a same or
similar character as the other wire fraud charges. Count
3
Nineteen was part of the same transaction as Count Eighteen.
See United States v. Carmichael, 685 F.2d 903, 910 (4th Cir.
1982). Snyder failed to show he was clearly prejudiced as a
result of joining the charges and not granting his motion to
sever.
The district court may grant a motion for a new trial
based on newly discovered evidence if:
(a) the evidence must be, in fact, newly discovered,
i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on
must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.
United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989).
This court has never allowed a new trial unless all five factors
are established. United States v. Fulcher, 250 F.3d 244, 249
(4th Cir. 2001). We review the denial of a motion for a new
trial based on newly discovered evidence for abuse of
discretion. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). We find no clear error with respect to the district
court’s finding that the newly discovered evidence was primarily
for impeachment purposes, not typically a basis for a motion for
a new trial, and that the evidence did not support a finding
that had it been presented at trial it would have probably
produced an acquittal.
4
The Sentencing Guidelines provide that the amount of
loss for purposes of sentencing enhancements is the greater of
the actual loss or the intended loss. U.S. Sentencing
Guidelines § 2B1.1 cmt. n.3(A) (2008). In this instance,
Snyder’s base offense level was increased by fourteen because it
was found that the amount of intended and actual loss was in
excess of $400,000. See USSG § 2B1.1(b)(1)(H).
The amount of loss is a factual determination reviewed
for clear error. United States v. Loayza, 107 F.3d 257, 265
(4th Cir. 1997). A sentencing court makes a “reasonable
estimate of the loss, given the available information.” United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003) (internal
quotation marks omitted); see USSG § 2B1.1, cmt. n.3(C). A
sentencing enhancement need only be supported by a preponderance
of the evidence. Miller, 316 F.3d at 503. Actual loss is the
value of the property taken by the Defendant from the victims.
See Loayza, 107 F.3d at 265. “Intended loss” is defined as “the
pecuniary harm that was intended to result from the offense . .
. and . . . includes intended pecuniary harm that would have
been impossible or unlikely to occur[.]” USSG § 2B1.1, cmt.
n.3(A)(ii). The intended loss amount may be used to determine
sentencing, “even if this exceeds the amount of loss actually
possible, or likely to occur, as a result of the defendant’s
conduct.” Miller, 316 F.3d at 502.
5
We find no error with respect to the district court’s
findings regarding actual or intended loss. Both figures were
supported by a preponderance of the evidence.
Accordingly, we affirm the convictions and sentence.
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
6