UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM BILL F. ADAMS, JR., a/k/a Bill F. Adams, a/k/a
William F. Adams,
Defendant – Appellant,
and
TOMMY SKEENS; JERRY SKEENS,
Petitioners.
No. 15-4137
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN B. WARD,
Defendant – Appellant,
and
TOMMY SKEENS; JERRY SKEENS,
Petitioners.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:12-cr-00044-JPJ-PMS-1; 1:12-cr-00044-JPJ-PMS-5)
Submitted: December 22, 2015 Decided: January 5, 2016
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy J. LaFon, CICCARELLO, DEL GIUDICE & LaFON, Charleston,
West Virginia; Michael A. Bragg, BRAGG LAW, PLC, Abingdon,
Virginia, for Appellants. Anthony P. Giorno, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In these consolidated appeals, William “Bill” F. Adams and
John B. Ward appeal their convictions for conspiracy to defraud
the United States, in violation of 18 U.S.C. § 371 (2012), and
structuring of currency transactions to evade reporting
requirements, in violation of 31 U.S.C. § 5324 (a)(3) (2012),
contending the evidence was insufficient to sustain their
convictions. Additionally, Adams and Ward claim that the
Government did not prove a single conspiracy, but actually
presented evidence of multiple conspiracies. Adams also
challenges the district court’s rulings on evidentiary matters
and the Government’s use of leading questions. Ward also
challenges his conviction on the basis that the financial
structuring committed by his coconspirators was not reasonably
foreseeable to hold him criminally liable under the Pinkerton *
doctrine.
We affirm.
I.
A jury convicted Adams and Ward of conspiring to defraud
the United States and of multiple counts of structuring currency
transactions to evade reporting requirements. The district
* Pinkerton v. United States, 328 U.S. 640 (1946).
3
court sentenced Adams and Ward to a 36-month prison term for
each offense, running concurrently.
These crimes arose out of a check-cashing scheme that
involved coal mining companies and mine supply businesses
located in Virginia and West Virginia. Under this scheme, mine
suppliers provided false invoices to certain mining companies,
and the companies paid the suppliers with a check. In return,
the mine suppliers paid ninety percent of the check amount in
cash to the mining company, keeping ten percent as its fee.
This scheme allowed the mining companies and their owners to
avoid payment of income tax on the cash received and benefit
from fictitious business tax deductions.
At the end of the Government’s case in chief and at the end
of the trial, Adams and Ward moved the district court for a
judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. Adams and Ward also moved the district court for
a new trial pursuant to Federal Rule of Criminal Procedure 33,
arguing the evidence presented at trial supported multiple
conspiracies (rather than the charged single conspiracy) and was
highly prejudicial, the Government improperly presented its case
with leading questions, the district court erred when it limited
the testimony of Adams’ expert witness, and the case lacked
sufficient evidence to support the verdicts. Finding sufficient
4
evidence for the convictions and no error, the court denied the
motions.
II.
A. Sufficient evidence supports the conspiracy and
structuring convictions
We review de novo the denial of Adams’ motion for judgment
of acquittal. United States v. Green, 599 F.3d 360, 367 (4th
Cir. 2010). Viewing the evidence in the light most favorable to
the Government, we must determine whether the conviction is
supported by “substantial evidence,” where “substantial evidence
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Young, 609
F.3d 348, 355 (4th Cir. 2010).
Substantial evidence supports the jury’s finding that Adams
and Ward participated in the conspiracy alleged in Count I of
the superseding indictment. To establish a conspiracy under §
371, the Government must prove (1) an agreement between two or
more people to commit a crime, and (2) an overt act in
furtherance of the conspiracy. United States v. Cone, 714 F.3d
197, 213 (4th Cir. 2013). A single conspiracy exists where
there is one overall agreement, or one general business venture.
United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). The
government can prove a single conspiracy by direct or
5
circumstantial evidence that a defendant knew its “essential
object” by demonstrating a “tacit or mutual understanding”
between the defendants and other conspirators, even where the
connection is slight. United States v. Hackley, 662 F.3d 671,
679 (4th Cir. 2011).
In this case, the evidence supports a single conspiracy —
to defraud the United States – through the agreement made among
Ward, Adams, and others, and their numerous overt acts involving
various cash transactions. The Government presented evidence to
establish a single conspiracy among bookkeepers, coal mine
operators, and sellers of cash located on and around the border
of West Virginia and Virginia. The conspirators, including
Adams and Ward, worked together to ensure that the coal mine
operators maintained a large supply of cash to conduct business
in such a way as to avoid taxes, to create paperwork to hide the
movement of untaxed cash through their businesses, and to make
sure their scheme went undetected.
To prove this conspiracy charge, the Government presented
substantial written evidence in the form of handwritten notes on
timesheets, the general ledgers of three mining companies
affiliated with Adams and Ward, invoices, and records of the
checks to pay those invoices. The Government also presented its
case through the testimony of numerous witnesses who spoke about
6
Ward’s and Adams’ working relationship, and their connection to
the cash suppliers involved in the conspiracy.
The district court also instructed the jury on a multiple-
conspiracy theory of defense to support Adams’ and Ward’s
argument that they were, at most, members of separate and
uncharged conspiracies. The jury thus could have found the
existence of multiple, separate conspiracies instead of one
overarching conspiracy. Nevertheless, the jury found Adams and
Ward guilty of the conspiracy charge. Accordingly, the evidence
presented at trial supports a single conspiracy, and the
district court did not err in denying the motions for judgment
of acquittal or new trial.
Substantial evidence also supports the jury’s finding that
Adams and Ward structured currency transactions to evade
reporting requirements. Pursuant to 31 U.S.C. § 5324(a), a
person is not permitted to structure currency transactions in
such a way to avoid federal reporting requirements. The
government must prove three elements to support a conviction for
this type of structuring: (1) the defendant knowingly engaged in
structuring; (2) the defendant knew of the reporting
requirements under federal law; and (3) the purpose of the
transaction was to evade the requirements. United States v.
$79,650.00 Seized from Bank of Am. Account Ending in 8247 at
Bank of Am., 7400 Little River Tpk., Annandale, Va., 650 F.3d
7
381, 384 (4th Cir. 2011) (citing without criticism the
instructions of the trial judge); see also United States v.
MacPherson, 424 F.3d 183, 189 (2d Cir. 2005).
The aiding and abetting statute, which is also referenced
in the structuring counts, provides “[w]hoever commits an
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a
principal,” and “[w]hoever willfully causes an act to be done
which if directly performed by him or another would be an
offense against the United States, is punishable as a
principal.” 18 U.S.C. § 2 (2012). Thus, even if Adams and Ward
did not make the structured withdrawals of cash themselves,
getting the cash providers to do so for them makes them equally
as culpable.
The record makes clear that the Government offered
sufficient evidence at trial from which a reasonable juror could
have found Adams and Ward guilty of structuring. First, Adams
and Ward routinely obtained cash in an amount of $10,000 or
less. Second, after the bank submitted one CTR each for Adams
and Ward, they kept their transactions under $10,000. Two
cooperating witnesses involved in the scheme testified that they
purchased cash in order to avoid paying taxes and triggering
bank reporting requirements. From this evidence, the jury could
infer Adams and Ward knew about the reporting requirements and
8
sought to avoid them. Moreover, the attempt to hide illegal
activity is itself evidence that they knew their conduct was
illegal. United States v. Beidler, 110 F.3d 1064, 1069 (4th
Cir. 1997). Finally, the third element—that the purpose of the
transactions was to avoid the reporting requirement—is
established by the same evidence that satisfied the second
element. Beidler, 110 F.3d at 1068-69. Adams and Ward could
have withdrawn cash in amounts greater than $10,000, but they
instead chose to go through the cash providers. The record
therefore contains sufficient evidence to uphold the structuring
convictions.
B. The district court did not abuse its discretion when
ruling on evidentiary matters or leading questions
“This Court reviews evidentiary rulings for abuse of
discretion.” United States v. Hill, 322 F.3d 301, 304 (4th Cir.
2003).
Federal Rule of Evidence 404(b) prohibits using evidence of
a crime, wrong, or other act “to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1).
Adams’ argument concerning alleged Rule 404(b) evidence relates
to his argument that the Government improperly presented
evidence of multiple conspiracies. Specifically, Adams argues
that the Government’s Rule 404(b) Notice “shows that the
9
presentation of evidence . . . as to his personally structured
transactions . . . was a separate crime.”
Because Rule 404(b) applies to other crimes, wrongs, or
acts, it does not apply if the proponent offers evidence of the
charged act itself. United States v. Lighty, 616 F.3d 321, 352
(4th Cir. 2010). Here, the Government offered evidence of
Adams’ structured transactions and cash wages, not evidence of
“other crimes.” These acts were intrinsic to the conspiracy
charge and the structuring counts. Indeed, the district court
and counsel briefly discussed this issue when preparing jury
instructions, and no one objected to removing the Rule 404(b)
instruction. Rule 404(b) thus does not extend to these
intrinsic acts, which are not “other acts” and were not offered
to prove Adams’ propensity to commit the charged offenses. As a
result, the district court did not abuse its discretion or err
when it admitted this evidence.
Adams also contends the district court erred when it
limited testimony by Dr. Robert Rufus, a certified public
accountant, because Federal Rule of Evidence 702 allows for
testimony by a person who is an “expert by knowledge, skill,
experience, training or education” as long as “the testimony is
based on sufficient facts or data.” Adams further contends the
only prohibition on expert testimony in criminal cases is that
“an expert witness must not state an opinion about whether the
10
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense.”
Fed. R. Evid. 704(b). Because Rufus did not plan to testify as
to the mental state or condition of the defendant, Adams argues
his testimony should not have been limited. Adams also argues
that Rufus’ testimony would have impeached Kermit Wiley, a
mining company supplier who testified to his provision of false
invoices for companies and other involvement in the conspiracy,
and the denial of that testimony prejudiced Adams and
constituted clear error.
A review of the record shows the district court properly
excluded the chart and potential corresponding testimony in
accordance with Rule 1006. The Rule states, in relevant part,
“The proponent may use a summary, chart, or calculation to prove
the content of voluminous writings, recordings, or photographs
that cannot be conveniently examined in court.” Fed. R. Evid.
1006. Thus, Rule 1006 permits the admission of charts into
evidence as a surrogate for underlying voluminous records that
would otherwise be admissible into evidence. United States v.
Janati, 374 F.3d 263, 272 (4th Cir. 2004).
Here, the district court found that the chart did not
summarize voluminous records. Additionally, the chart focused
on a Memorandum of Interview documenting certain out-of-court
statements made by Kermit Wiley. At no point during his
11
testimony, however, did Wiley discuss the details set forth in
that Memorandum. Thus, the chart relied on inadmissible
evidence.
The district court also concluded that the chart and
proposed testimony did not amount to “expert” opinion evidence.
The district court surmised that Rufus intended to recount
inadmissible testimony of another witness for the purpose of
impeaching that witness’ testimony. This is not an “expert”
opinion based on otherwise inadmissible facts or data for
purposes of Rule 703. See United States v. Johnson, 587 F.3d
625, 635 (4th Cir. 2009) (“It is nonetheless appropriate for
district courts to recognize the risk that a particular expert
might become nothing more than a transmitter of testimonial
hearsay and exercise their discretion in a manner to avoid such
abuses.”). Therefore, the district court did not abuse its
discretion when it excluded Rufus’ chart summarizing the Kermit
Wiley Transactions.
This court reviews rulings on the use of leading questions
for an abuse of discretion. United States v. Durham, 319 F.2d
590, 592 (4th Cir. 1963). “Generally, abuse of discretion is
not found in the absence of prejudice or clear injustice to the
defendant.” Id.
Adams argues the “large number of leading questions . . .
substantially affected [his rights] and the same constitutes
12
clear and prejudicial error.” Adams does not identify any
individual questions or objections that he disputes. Rather,
his argument seems to be that taken altogether, the Government
presented its case through leading questions “without actually
getting any substantive testimony from the witnesses.”
Nevertheless, a review of the record shows that during the
Government’s case in chief, Adams’ counsel made numerous
objections to leading questions, some of which the district
court sustained, and some of which the court overruled. Adams
has not explained, nor does the record show, how prejudice
occurred or how the district court abused its discretion in
ruling on these objections. Accordingly, the district court did
not abuse its discretion in ruling on the objections, nor did
its rulings result in prejudice to Adams.
C. The coconspirators’ financial structuring was
reasonably foreseeable to hold Ward accountable under
the Pinkerton doctrine.
The Pinkerton doctrine imposes vicarious liability on a
coconspirator for the substantive offenses committed by other
members of the conspiracy when the offenses are during and in
furtherance of the conspiracy. Pinkerton v. United States, 328
U.S. 640, 646–47 (1946); see also Nye & Nissen v. United States,
336 U.S. 613, 618 (1949) (stating Pinkerton “held that a
conspirator could be held guilty of the substantive offense even
though he did no more than join the conspiracy, provided that
13
the substantive offense was committed in furtherance of the
conspiracy and as a part of it”); accord United States v.
Chorman, 910 F.2d 102, 110 (4th Cir. 1990).
Ward argues there “is no evidence that Ward himself engaged
in any structured withdrawal transaction,” and “there is not
evidence that Ward was aware that cash withdrawals over $10,000
had to be reported.”
Ward’s argument is without merit. In this case, a
significant portion of the conspiracy involved purchasing large
amounts of cash and falsified invoices to hide the movement of
cash. Therefore, it was reasonably foreseeable that the cash
sellers would undertake methods to avoid detection when
acquiring the cash.
Furthermore, in accordance with Pinkerton, the jury could
have convicted Ward and Adams based solely on the substantive
structuring offenses committed by their coconspirators in the
course of and in furtherance of the conspiracy. The district
court properly instructed the jury on this issue. Cooperating
witnesses who pleaded guilty to participation in the conspiracy
testified that they had structured cash out of financial
institutions to avoid reporting requirements, and that they sold
this structured cash to Adams and Ward. Whether Adams or Ward
personally made the withdrawals is irrelevant. The evidence is
sufficient that Ward used the structured cash to further a
14
conspiracy and defraud the United States, and the possibility
that cash providers might have structured the cash that they
were selling to Ward and Adams was reasonably foreseeable.
III.
Viewing the evidence in the light most favorable to the
Government, we conclude that a rational jury certainly could
have found substantial evidence beyond a reasonable doubt to
convict Adams and Ward of conspiracy to defraud the United
States, and for the substantive counts of structuring currency
transactions to evade reporting requirements. We further
conclude that the district court did not abuse its discretion or
violate Federal Rule of Evidence 404(b) when it admitted
evidence intrinsic to these crimes. Similarly, the district
court did not abuse its discretion when it excluded a chart and
limited the testimony of Dr. Robert Rufus regarding certain
transactions and inadmissible evidence, nor did it abuse its
discretion when it ruled on objections to leading questions.
Accordingly, we affirm the district court’s judgments. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
15