UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONY REYNOLDS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-88)
Argued: February 3, 2006 Decided: May 3, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: James Byron Lees, Jr., HUNT & LEES, L.C., Charleston, West
Virginia, for Appellant. John Park Pearson, UNITED STATES
DEPARTMENT OF JUSTICE, Public Integrity Section, Criminal Division,
Washington, D.C., for Appellee. ON BRIEF: Richard C. Pilger,
UNITED STATES DEPARTMENT OF JUSTICE, Public Integrity Section,
Criminal Division, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This criminal appeal arises from Mark Anthony Reynolds’s wire
fraud and obstruction of justice convictions, for which he was
sentenced to 120 months’ imprisonment. Reynolds challenges both of
his convictions, principally contesting the sufficiency of the
evidence to support them. With respect to his sentence, Reynolds
challenges the district court’s five-level upward departure. For
the reasons herein, we affirm Reynolds’s convictions, but vacate
his sentence and remand for resentencing.
I.
The facts giving rise to Reynolds’s convictions began in 2003,
when a West Virginia man named Bill Buzzo was under federal
investigation for money laundering. Carl R. Mapel, Jr., offered to
serve as Buzzo’s attorney, with Reynolds acting as Mapel’s
paralegal. Unbeknownst to Buzzo, Mapel could not legally represent
Buzzo because Mapel’s Pennsylvania bar license had been placed on
inactive status in 1996 for his failure to comply with
Pennsylvania’s rules for continuing legal education. Reynolds,
however, was aware that Mapel was no longer authorized to practice
law.
Mapel and Reynolds told Buzzo and his family members that they
were well connected to key Republican political figures in West
Virginia. In this vein, the two falsely asserted that they could
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obtain leniency in Buzzo’s case if Buzzo provided them with funds
to bribe these officials. Mapel and Reynolds charged $50,000 for
their services, with an additional $50,000 in payments “for the
Republicans.” J.A. 220.
Mapel misrepresented his Pennsylvania bar status to the West
Virginia district court and was admitted pro hac vice to represent
Buzzo on the money laundering charges. Between July and October
2003, Mapel negotiated a plea agreement for Buzzo. As Buzzo’s case
proceeded, Reynolds grew more insistent in his requests for money,
at one point seeking as much as $250,000 from Buzzo. Buzzo became
increasingly uncomfortable with Reynolds’s demands and threats to
cut off representation such that he began conversing with Mapel and
Reynolds solely from his office phone, which was located at an
ambulance service where all calls were recorded. By November 2003,
Reynolds and Buzzo’s relationship had deteriorated to such an
extent that they discontinued speaking to each other. Thereafter,
Buzzo communicated solely with Mapel, and Mapel distanced himself
from Reynolds in conversations with Buzzo by stating that he had
not had contact with Reynolds and questioning whether Reynolds had
the political connections he claimed. In fact, however, Reynolds
continued to assist Mapel with Buzzo’s case.
Buzzo pled guilty to his money laundering charges on December
8, 2003. In February 2004, while Buzzo awaited sentencing, the FBI
learned of Mapel and Reynolds’s scheme and began to investigate.
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By then, Buzzo had paid $15,000 of the arranged bribe, with the
understanding that this money had gone to the Republicans in
exchange for a “good judge” and a lower sentencing range. J.A.
908, 932.
As part of its investigation, the FBI also began to record
Buzzo’s telephone calls. One such call occurred between Mapel in
Arizona and Buzzo in West Virginia on February 18, 2004 (the
“February 18, 2004 call”). During the conversation, Mapel stated
that the chair of the West Virginia Republican Party would only
seek home confinement for Buzzo’s sentence if paid $10,000 more
toward the $50,000 bribe. The FBI arranged for Buzzo’s grandson,
Jason Smyth, to make a controlled payment of that amount to Mapel
on March 25, 2004. Investigators arrested Mapel as he left the
meeting with the money.
Later that day, Smyth called Reynolds at the FBI’s direction
and told him that Mapel had not arrived to pick up the payment.
The two arranged to meet so that Smyth could give the funds to
Reynolds instead. When Reynolds picked up the money, he told Smyth
that he had continued to work on Buzzo’s case, having recently
prepared a motion and objections, and that he planned to meet with
Mapel that evening. Reynolds again emphasized his close ties with
the West Virginia Republican Party Chairman and the Republican
gubernatorial candidate and told Smyth that he was running for
state senate. As Reynolds accepted the money, he refrained from
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explicitly confirming what the payment was for, explaining that he
had to be careful of what he said “because any irregularities for
me, you know, they hit me.” J.A. 872. Investigators arrested
Reynolds immediately after the meeting.
When Mapel and Reynolds’s scheme came to light after their
arrests, the judge presiding over Buzzo’s case had to “essentially
start over with Mr. Buzzo’s case” to avoid any taint from Buzzo’s
representation by an unlicensed lawyer and the promises of improper
influence. J.A. 302. The judge set aside Buzzo’s guilty plea and
ordered the appointment of a new lawyer. This resulted in a need
to renegotiate Buzzo’s plea agreement, hold additional conferences
and proceedings, and prepare new filings.
Mapel and Reynolds were charged with two counts of wire fraud
and aiding and abetting wire fraud, in violation of 18 U.S.C. §§
1343 and 2, and one count of obstruction of justice and aiding and
abetting obstruction of justice, in violation of 18 U.S.C. §§ 1503
and 2. Mapel pled guilty to these charges. A superceding
indictment against Reynolds added a third count of wire fraud,
which was subsequently dismissed prior to trial. The jury
convicted Reynolds of one count of wire fraud (based upon the
February 18, 2004 call) and the count of obstruction of justice,
but found him not guilty of the other wire fraud charge.
At sentencing, the district court calculated Reynolds’s
sentencing range as follows. First, the court followed the
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calculations in the presentence investigation report. It
determined that, with enhancements, the wire fraud count had an
adjusted offense level of 17 and the obstruction of justice count
had an adjusted offense level of 19. Applying the rules for
multiple counts of conviction in Part D of Chapter Three of the
United States Sentencing Guidelines Manual (2003), the court
grouped each count separately and assigned 1 unit to each group.
Pursuant to § 3D1.4, it therefore added 2 levels to the obstruction
of justice count, which had the highest offense level (19). Thus,
Reynolds’s combined adjusted offense level was 21. With Reynolds’s
criminal history category of VI, the sentencing range under the
Guidelines was 77 to 96 months. Neither Reynolds nor the
Government objected to this calculation of the Guidelines range.
The court then considered the Government’s motion for an
upward departure under § 5K2.7 of the Guidelines for significant
disruption of a governmental function. According to the policy
statement of § 5K2.7, an upward departure on this basis is
permitted “to reflect the nature and extent of the disruption and
the importance of the governmental function affected.” However, it
also provides that such a departure “ordinarily would not be
justified when the offense of conviction is an offense such as
bribery or obstruction of justice; in such cases interference with
a governmental function is inherent in the offense, and unless the
circumstances are unusual the guidelines will reflect the
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appropriate punishment for such interference.” U.S.S.G. § 5K2.7
(emphasis added). So as not to offend this policy statement, the
court determined that it could increase Reynolds’s sentence by
departing on the wire fraud count only. The court reasoned that
the wire fraud resulted in a substantial disruption of Buzzo’s
proceedings and called into question the integrity of the court.
To apply the departure only to the wire fraud count, the court
recalculated Reynolds’s sentencing range starting with the adjusted
offense levels for each count before grouping. The court took the
wire fraud’s offense level of 17 and applied a 5-level § 5K2.7
upward departure to reach level 22. It then reapplied the grouping
rules, this time increasing the wire fraud count’s new adjusted
offense level of 22 by 2 levels. The resulting total offense level
of 24 increased Reynolds’s sentencing range from 77 to 96 months to
100 to 125 months. The court sentenced Reynolds to 120 months’
imprisonment on the wire fraud count, over Reynolds’s objection to
this new calculation. This appeal followed.
II.
We first examine Reynolds’s challenge to the denial of his
motion for a judgment of acquittal. Reynolds argues that the
evidence was insufficient to support both his wire fraud and
obstruction of justice convictions. We review de novo the district
court’s denial of a motion for a judgment of acquittal. United
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States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). “If the
motion was based on insufficiency of the evidence, the verdict
‘must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it.’” Id.
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).
A.
In Count Two, the superceding indictment charged Reynolds with
wire fraud and aiding and abetting wire fraud. To establish the
substantive crime of wire fraud, the government must prove “1) a
scheme to defraud and 2) the use of a wire communication in
furtherance of that scheme.” United States v. Bollin, 264 F.3d
391, 407 (4th Cir. 2001) (internal quotation marks omitted). One
who aids and abets the commission of an offense “is punishable as
a principle.” 18 U.S.C. § 2. “A defendant is guilty of aiding and
abetting if he has knowingly associated himself with and
participated in the criminal venture.” United States v. Burgos, 94
F.3d 849, 873 (4th Cir. 1996) (en banc) (internal quotation marks
omitted). We have held that “to be convicted of aiding and
abetting, participation in every stage of an illegal venture is not
required, only participation at some stage accompanied by knowledge
of the result and intent to bring about that result.” Id.
(internal quotation marks and alteration marks omitted). In the
specific context here:
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[T]o be convicted of aiding and abetting a wire fraud
offense, it is not necessary for the defendant to be
directly or personally involved in the wire communication
as long as the wire communication was reasonably
foreseeable to the defendant in the execution of the
alleged scheme to defraud in which the defendant is
accused of participating.
United States v. Pasquantino, 336 F.3d 321, 335 (4th Cir. 2003) (en
banc) (citing United States v. Griffith, 17 F.3d 865, 874 (6th Cir.
1994)), aff’d on other grounds, 544 U.S. 349 (2005).
The indictment described the fraud scheme as having two
specific objectives: (1) to obtain money from Buzzo by falsely
claiming that Mapel was a properly licensed attorney able to
represent Buzzo, and (2) to obtain money from Buzzo by falsely
claiming that Mapel and Reynolds could corruptly influence public
officials to provide Buzzo with a more lenient sentence. The
interstate communication identified as the basis for Count Two was
the February 18, 2004 call between Buzzo in West Virginia and Mapel
in Arizona, during which Mapel discussed Buzzo’s case, reviewed
with Buzzo the “successes” of the bribery scheme, and sought the
immediate payment of another $10,000.
Reynolds argues that the evidence was insufficient to convict
him even under an aiding and abetting theory because he had nothing
to do with the February 18, 2004 call. He points out that he and
Buzzo stopped communicating after November 2003 and that thereafter
Mapel downplayed his relationship with Reynolds and dismissed the
connections that Reynolds purported to have when speaking to Buzzo.
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In addition, he notes that he was neither a party to the February
18, 2004 call nor mentioned during this call. We find Reynolds’s
arguments to be unavailing.
First, a reasonable factfinder could conclude that Reynolds
knowingly associated with and participated in the scheme to
defraud. Smyth testified that Reynolds attended meetings with
Mapel and the Buzzo family in 2003, with Reynolds acting as Mapel’s
paralegal for the case. During these meetings, Buzzo testified
that Mapel and Reynolds discussed the fee for their services and,
emphasizing their connections with members of the Republican party,
told Buzzo and his family that “they could put a certain amount of
money in the right places and could get things done.” J.A. 530.
In addition, the Government introduced recorded telephone
conversations in which Mapel specifically discussed the purported
bribery and what Buzzo was receiving in exchange for his payments
to the Republicans. Although Reynolds was somewhat more cryptic
than Mapel over the telephone, the jury heard several recordings of
Reynolds pressuring Buzzo for money. See, e.g., J.A. 826 (Reynolds
telling Buzzo, with respect to securing a sentence of home
confinement, “[W]e gotta go to some people and get it done. . . .
But you gotta work with us and give us, give us the, ah, the tools
to work with. And I, and I think you, being who you are and what
I know about you, you know what I mean.”).
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Second, the evidence supports the inference that the February
18, 2004 call between Buzzo and Mapel was reasonably foreseeable to
the execution of the fraudulent scheme. Having involved himself in
the scheme to defraud and having himself attempted to further that
scheme through conversations with Buzzo and Smyth over the
telephone, Reynolds had every reason to foresee the call that
formed the basis for his conviction here. It is of no consequence
that Reynolds did not participate in the conversation. See
Pasquantino, 336 F.3d at 336.
Finally, to the extent that Reynolds suggests he disassociated
himself from the scheme to defraud prior to the February 18, 2004
call so as to avoid culpability arising from it, neither the law
nor the facts here support his contentions. As noted above, aiding
and abetting does not require participation at every stage of an
illegal venture, but instead requires participation at some stage
accompanied by the requisite intent. Burgos, 94 F.3d at 873.
Moreover, the evidence showed that Reynolds did continue to
participate in the scheme up until his arrest on March 25, 2004,
although he assumed a less conspicuous role. Reynolds’s retreat to
the background was consistent with the Government’s theory that
Reynolds had pushed Buzzo too hard in his demands for money and
threats to cut off representation--resulting in Mapel taking over
communications with the Buzzo family and outwardly distancing
himself from Reynolds. In addition, Reynolds willingly met with
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Smyth on March 25, 2004 to pick up a payment when he believed Mapel
was unavailable. During that meeting he told Smyth that he was
still working with Mapel on Buzzo’s case and had recently prepared
a motion and objections for Buzzo’s sentencing. Thus, Reynolds’s
suggestions of abandonment or withdrawal are without merit.
Accordingly, we affirm Reynolds’s conviction for aiding and
abetting wire fraud.
B.
Reynolds also challenges the sufficiency of the evidence to
support his conviction for obstruction of justice. He contends
that because he, as a paralegal, had no affirmative duty to stop
Mapel from practicing law or to inform the district court that
Mapel was not licensed, he did not obstruct justice. These
arguments misunderstand the law of obstruction of justice.
The obstruction of justice statute provides, in pertinent
part: “Whoever . . . corruptly . . . influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished . . . .” 18 U.S.C. §
1503(a). Thus, we have required that to be guilty of obstructing
justice “a defendant must have knowledge or notice of a pending
judicial proceeding, and must have acted with the intent to
influence, obstruct, or impede that proceeding in its due
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administration of justice.” United States v. Littleton, 76 F.3d
614, 619 (4th Cir. 1996).
Under our precedent, participation in a scheme to defraud that
interferes with a judicial proceeding can satisfy the intent
requirement of 18 U.S.C. § 1503. See United States v. Neiswender,
590 F.2d 1269 (4th Cir. 1979). In Neiswender, the appellant had
falsely represented to an attorney that for $20,000, he could
ensure a favorable outcome for the attorney’s client by influencing
a juror. Id. at 1270. The appellant argued that his only intent
was to defraud the attorney, not to actually obstruct justice. Id.
at 1272. The government argued that success in this fraud would
naturally have led to an obstruction of justice because it would
reduce the attorney’s efforts on behalf of his client. Id. We
affirmed the appellant’s obstruction of justice conviction, holding
that the defendant “need only have had knowledge or notice that
success in his fraud would have likely resulted in an obstruction
of justice.” Id. at 1273. Moreover, such notice was “provided by
the reasonable foreseeability of the natural and probable
consequences of one’s acts.” Id.
Here, Reynolds plainly had knowledge of the pending judicial
proceeding in Buzzo’s money laundering case. The evidence also
supports the reasonable inference that Reynolds possessed the
requisite intent to obstruct justice. As discussed above, the
evidence showed that Reynolds participated in a scheme to defraud
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Buzzo by making him believe that his sentence could be favorably
influenced through bribery. The jury could reasonably infer that
it was natural and probable that this fraud would result in an
obstruction of justice. Indeed, obstruction actually did result in
this case. For one, Buzzo’s guilty plea and plea agreement had to
be thrown out, causing additional judicial resources to be
expended. See United States v. Silverman, 745 F.2d 1386, 1394-95
(11th Cir. 1984) (following Neiswender to affirm conviction where
a possible result of defendant’s fraudulent sentence-fixing scheme
was that the victim’s conviction and sentence would be set aside).
In addition, Buzzo and Smyth testified that they were less diligent
in collecting information about Buzzo’s infirmities to support his
request for home confinement. See United States v. Buffalano, 727
F.2d 50, 54 (2d Cir. 1984) (applying Neiswender to affirm
conviction where the defendant’s fraudulent bribery scheme “had the
potential to lull an ‘innocent victim’ into a false sense of
security, deterring him from taking an active role himself to
secure a more favorable sentence”).
Thus, the evidence was more than sufficient to support the
jury’s finding of the elements of this charge. Accordingly, we
affirm Reynolds’s conviction for obstruction of justice.
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III.
Finally, we address the district court’s grant of a five-level
upward departure for a significant disruption of a governmental
function pursuant to § 5K2.7 of the Guidelines. At the outset, we
note that although Reynolds’s sentencing took place prior to United
States v. Booker 543 U.S. 220 (2005), the argument we address here
is not an assertion of Booker error, but a challenge to the
calculation of the Guidelines. This particular issue involves the
district court’s legal interpretation of the Guidelines, which we
review de novo. United States v. Reevey, 364 F.3d 151, 156 (4th
Cir. 2004). See also United States v. Collins, 415 F.3d 304, 315
(4th Cir. 2005) (“This court reviews ‘a district court’s
interpretation of the applicable sentencing guidelines de novo and
its factual findings for clear error.’” (quoting United States v.
Quinn, 359 F.3d 666, 679 (4th Cir. 2004))).
The “Application Instructions” for use of the Guidelines set
forth nine sequential steps to be followed by the sentencing court
in applying the provisions of the Guidelines manual. See U.S.S.G.
§ 1B1.1. See also United States v. Johnson, 155 F.3d 682, 684 (3d
Cir. 1998) (reading the § 1B1.1 instructions “as providing a
sequence of steps for the court to follow in the order in which
they appear”). In the first four steps under § 1B1.1, the
sentencing court must determine the offense guideline and level for
each count of conviction, apply the relevant adjustments, and, as
15
pertinent here, group multiple counts according to the grouping
guidelines in Part D of Chapter Three. See U.S.S.G. § 1B1.1(a)-
(d). Thereafter, the court is to apply any adjustment for
acceptance of responsibility, determine the defendant’s criminal
history category, and ascertain the guideline range and options
related to probation, imprisonment, supervision conditions, fines,
and restitution. See U.S.S.G. § 1B1.1(e)-(h). Not until the final
step is the court to “[r]efer to Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and to any other
policy statements or commentary in the guidelines that might
warrant consideration in imposing sentence.” U.S.S.G. § 1B1.1(I).
The grouping provisions in Part D of Chapter Three reinforce
the understanding that grouping is to occur before departures are
considered. Specifically, § 3D1.5 provides that sentencing courts
should “[u]se the combined offense level to determine the
appropriate sentence in accordance with the provisions of Chapter
Five.” U.S.S.G. § 3D1.5. See also United States v. Reis, 369 F.3d
143, 148 (2d Cir. 2004) (“It is only from this single [combined]
offense level that the final sentence is calculated ‘in accordance
with the provisions of Chapter Five.’” (quoting U.S.S.G. § 3D1.5));
United States v. Milan, 304 F.3d 273, 296 (3d Cir. 2002) (observing
that departing prior to making multiple-group adjustments would put
“the departure cart before the Guidelines Range horse” (internal
quotation marks omitted)).
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Here, the district court attempted to circumvent the policy
statement of § 5K2.7--that a disruption of a governmental function
departure is not justified for an obstruction of justice conviction
absent unusual circumstances--by departing on the wire fraud count
before applying the grouping rules of Chapter Three, Part D. In so
doing, the district court failed to calculate Reynolds’s sentencing
range according to the framework provided by the Application
Instructions of § 1B1.1 and § 3D1.5. As a result, the Government
effectively obtained a § 5K2.7 departure on a combined offense
level that included an obstruction of justice conviction, even
though the district court apparently did not believe that unusual
circumstances were present. Calculating the range this way
violated the § 5K2.7 policy statement, which echoes the broader
goal of the Guidelines that departures should be used only where
conduct has not otherwise been accounted for in the calculation of
the defendant’s guideline range. See United States v. Terry, 142
F.3d 702, 705 (4th Cir. 1998) (“[I]f an encouraged factor is
already taken into account in the applicable guideline, or if a
factor is discouraged, the sentencing court may depart ‘only if the
factor is present to an exceptional degree or in some other way
makes the case different from the ordinary case where the factor is
present.’” (quoting Koon v. United States, 518 U.S. 81, 96 (1996)).
Due to this erroneous application of the Guidelines,
Reynolds’s sentencing range went from 77 to 96 months to 100 to 125
17
months, and the judge imposed a 120-month sentence. Accordingly,
we must vacate Reynolds’s sentence and remand for resentencing.
IV.
In his brief, Reynolds also raised several challenges to the
district court’s decisions to admit or exclude certain evidence.
We note that under our review, we give great deference to the
evidentiary rulings of trial court judges, and will not overturn
them absent an abuse of discretion. See United States v. Godwin,
272 F.3d 659, 670 (4th Cir. 2001). With that standard in mind, we
have reviewed carefully each of Reynolds’s challenges and found
them to be without merit. Accordingly, for the reasons stated
herein, we affirm Reynolds’s convictions, but vacate his sentence
and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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