United States v. Esposito

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5079

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALBERT ESPOSITO,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-202)

Submitted: October 5, 2006 Decided: November 16, 2006

Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and James R.
SPENCER, Chief United States District Judge for the Eastern
District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Steven T. Meier, MALONEY AND MEIER, L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Albert Esposito appeals his convictions and sentence for

various offenses arising out of a “Ponzi” scheme. Finding no

error, we affirm.

From 1998 through 2001, Esposito and several others created

various entities and defrauded numerous investors of millions of

dollars. Esposito convinced his victims, through seminars and

conversations, to invest their money with him in investment

vehicles such as gold bullion, aviation, real estate, and

Christian-oriented causes. In reality, however, Esposito used his

investors’ money for the personal benefit of himself and others and

to pay other investors to trick them into believing that their

investments were making money.

Esposito was indicted along with three co-defendants and

charged with one count of conspiracy to commit offenses against the

United States, including mail and wire fraud, see 18 U.S.C.A. § 371

(West 2000); two mail fraud counts, see 18 U.S.C.A. § 1341 (West

Supp. 2006); four wire fraud counts, see 18 U.S.C.A. § 1343 (West

Supp. 2006); 20 counts of money laundering, see 18 U.S.C.A.

§§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), 1957(a) (West 2000); and one

count of conspiracy to engage in money laundering and in monetary

transactions in property derived from unlawful activity, see

18 U.S.C.A. § 1956(h) (West Supp. 2006).

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Upon the completion of the Government’s case at trial,

Esposito moved unsuccessfully for a judgment of acquittal. At the

conclusion of the trial, the Government moved to dismiss two of the

wire fraud counts and four of the money laundering counts. The

jury found Esposito not guilty of two of the money laundering

counts but guilty of the 20 remaining counts.

II.

Esposito first argues that the district court erred in

allowing the Government to ask witness David Brooks whether he was

aware that Esposito had previously been convicted of laundering

drug money.1 We disagree.

Evidentiary rulings are generally reviewed for abuse of

discretion. See United States v. Queen, 132 F.3d 991, 995 (4th

Cir. 1997). Although evidence of a person’s character is normally

not admissible for the purpose of proving action in conformity

therewith on a particular occasion, it “may be offered by the

government to rebut character evidence introduced by the accused.”

United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994).

Here, Esposito “opened the door” to the Government’s rebuttal

when he questioned Brooks regarding Brooks’ belief, based on his

having known Esposito since 1986, that Esposito would not set out

to steal his money. See id. (holding that defendant’s elicitation

1
Brooks testified that he was not aware of this conviction.

3
of testimony that he was honest and trustworthy in his business

dealings opened the door for the Government to question witness

about prior conduct by the defendant that would conflict with that

assessment). Thus, the district court did not abuse its discretion

in allowing the question.

III.

Esposito also contends that the district court erred in

denying his motion for a judgment of acquittal. This argument is

meritless.

We review the denial of a motion for a judgment of acquittal

de novo. See United States v. Gallimore, 247 F.3d 134, 136 (4th

Cir. 2001). “In evaluating the sufficiency of the evidence to

support a criminal conviction, we must determine--viewing the

evidence and all of the inferences reasonably to be drawn from it

in the light most favorable to the Government--whether a reasonable

trier of fact could have found the defendant guilty beyond a

reasonable doubt.” United States v. Rahman, 83 F.3d 89, 93 (4th

Cir. 1996).

Esposito maintains that his motion should have been granted

because the Government failed to present sufficient evidence of his

intent to defraud his victims. To the contrary, the evidence of

Esposito’s fraudulent intent was overwhelming and included

testimony regarding multiple admissions by Esposito that he was

running a Ponzi scheme rather than offering legitimate investment

4
opportunities. Thus, the district court correctly denied his

motion.

IV.

Esposito, who represented himself at trial, next argues that

the district court abused its discretion in denying his motion to

dismiss the charges against him based on the Government’s having

had access to his work product following its replacement of a

laptop computer the Government had provided to him to help him

prepare for trial. See United States v. Smith, 55 F.3d 157, 158

(4th Cir. 1995) (stating standard of review). Esposito notes that

the Government downloaded all of his files (and provided them on

compact disc to standby counsel) when the computer quit working.

This, he maintains, violated his confidentiality rights and denied

him a fair trial. We disagree.

Counsel for the Government reported that in replacing the

computer and transferring the files, the Government employed a

strict procedure to assure that no one from the United States

Attorney’s Office--except for its technical assistant--had access

to the information stored on the computer. In view of this

procedure and in the absence of any evidence that any person

participating in Esposito’s case gained information stored by him

on the computer, the district court did not abuse its discretion in

denying Esposito’s motion to dismiss the indictment.

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V.

Esposito next argues that the district court erred in denying

his motion for a continuance after he was provided with more than

300 audio tapes only a few days before trial. We disagree.2

A denial of a continuance motion constitutes an abuse of

discretion only if the denial was “an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable

request for delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983)

(internal quotation marks omitted). A defendant challenging a

denial of such a motion must establish not only that the denial

constituted an abuse of discretion but also that he was prejudiced

by the ruling. See United States v. Bakker, 925 F.2d 728, 735 (4th

Cir. 1991).

Here, the record reflects that Esposito had access to the

tapes in question throughout the case. And, in any event, Esposito

does not explain what he would have done differently at trial had

the continuance been granted. Thus, he has not established any

reversible error.

2
Esposito also appears to contend that the district court
erred in denying his request for an investigator and a forensic
accountant. If he does assert this claim, his conclusory argument
amounts to a waiver of the claim, and we do not address it. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”).
Esposito further complains of several conditions of his pre-trial
confinement but does not identify any ruling of the district court
concerning those conditions with which he takes issue. We
therefore have nothing to review in that regard.

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VI.

Finally, Esposito contends that the district court employed an

incorrect procedure in calculating his sentence after United States

v. Booker, 543 U.S. 220 (2005). He claims that the district court

failed to recognize that following Booker it was “required to

determine whether the guidelines applied and whether the conduct in

this case was atypical, and, if so, whether some other guidelines

should apply.” Br. of Appellant at 16. We find no error.

The treatment to be given the guidelines post-Booker is

described in detail in United States v. Moreland, 437 F.3d 424, 432

(4th Cir. 2006). The district court correctly employed the

procedure that Moreland prescribes.

VII.

In sum, we affirm Esposito’s convictions and sentence.

AFFIRMED