PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4724
RICHARD W. POWELL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(1:10-cr-00007)
Argued: March 22, 2012
Decided: May 16, 2012
Before SHEDD, KEENAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opin-
ion, in which Judge Shedd and Judge Keenan joined.
COUNSEL
ARGUED: Edward Ryan Kennedy, ROBINSON &
MCELWEE, Clarksburg, West Virginia, for Appellant.
Andrew R. Cogar, OFFICE OF THE UNITED STATES
ATTORNEY, Clarksburg, West Virginia, for Appellee. ON
BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.
2 UNITED STATES v. POWELL
OPINION
FLOYD, Circuit Judge:
Appellant Richard Powell appeals his conviction and sen-
tence for making, or aiding and abetting the making of, a false
entry in a bankruptcy-related document, in violation of 18
U.S.C. §§ 2, 1519. He contends that the district court erred in
failing to provide several requested jury charges, the prosecu-
tor committed reversible misconduct, defense counsel pro-
vided ineffective assistance, and the district court improperly
refused to apply a mitigating role adjustment in sentencing.
Finding these arguments to be either without merit or non-
cognizable, we affirm.
I.
A.
On January 5, 2010, the grand jury indicted Powell on one
count of a fifteen-count indictment for making, or aiding and
abetting his co-defendant, Michael Pavlock, in making, a false
entry in a bankruptcy-related document, in violation of 18
U.S.C. §§ 2, 1519. The indictment charged Pavlock with
twelve counts of wire fraud and three counts of making, or
aiding and abetting the making of, a false entry in a
bankruptcy-related document.
The charges arose from a fraudulent scheme directed by
Pavlock. Under this scheme, Pavlock established companies
and maintained control over them by installing his associates
as their nominal heads. He then convinced individuals to
invest in the companies through loans that he represented
would be repaid with interest. But these companies in fact had
no legitimate business activity, and he misappropriated the
invested funds for personal use. Relevant to the present
appeal, Pavlock installed Powell as the managing member of
UNITED STATES v. POWELL 3
one such company, Fayette Investment Acquisitions, LLC
(FIA).
Golden Investment Acquisitions, LLC (GIA), although
nominally owned and managed by Craig Golden, was also
under Pavlock’s control. On March 31, 2006, at Pavlock’s
direction, GIA signed a contract of sale to purchase the assets
of a limousine service, including a number of limousines (the
Gratz limousines), from Charles and Trudy Gratz for
$175,000. But the Gratzes did not sign title to the limousines
to GIA at that time.
Instead, in December 2006, Powell met with the Gratzes’
accountant, Wallace McCarrell, in McCarrell’s office in
Washington, Pennsylvania. Powell represented that he had
authority to receive the limousines on behalf of FIA. Without
questioning Powell’s authority or FIA’s entitlement, McCar-
rell signed the titles of the limousines to FIA—not GIA—and
delivered the vehicles to Powell. Although Charles Gratz was
not present, McCarrell signed Mr. Gratz’s name to the certifi-
cates of title and notarized the signatures. There is no evi-
dence, however, that Powell or FIA paid for these vehicles at
any time, and Golden later testified that GIA never transferred
ownership to FIA.
By June 2007, GIA was severely over-leveraged, and Pav-
lock directed his associate, Stephen Graham, to put GIA into
Chapter 11 bankruptcy. As a result, without Golden’s knowl-
edge or consent, Graham filed a Chapter 11 bankruptcy peti-
tion and schedules for GIA. Thomas Fluharty was appointed
as GIA’s bankruptcy trustee. GIA’s bankruptcy schedules
failed to reflect its acquisition or ownership of the Gratz lim-
ousines, so Fluharty initially was unaware that GIA had pur-
chased the vehicles.
Pavlock then directed Powell to contact Fluharty to open
negotiations for the purchase of GIA’s assets by FIA. Fluharty
ultimately agreed to the sale, but the deal fell through in May
4 UNITED STATES v. POWELL
2008 after several checks Powell sent to complete the pur-
chase bounced. Powell and Fluharty did not discuss the Gratz
limousines during these negotiations.
Fluharty first learned of the transaction involving the Gratz
limousines when Charles Gratz’s attorney contacted him in
summer 2008. Fluharty then began to investigate whether the
limousines were the subject of a fraudulent transfer. Thereaf-
ter, in a letter dated January 29, 2009, Powell wrote Fluharty
regarding the Gratz limousines. Although the January 29 let-
ter had been drafted by FIA’s in-house counsel, Kevin
Clancy, based on information provided by Pavlock, Powell
reviewed and signed it. The letter contained two allegedly
false statements. First, Powell claimed that Pavlock and Gra-
ham, through FIA and another of Pavlock’s companies,
"loaned over $500,000 to GIA to fund acquisitions including
the Gratz Limousine Service." Second, he stated, "With the
exception of . . . two Lincoln limousines, all of the physical
assets of Mr. Gratz’s limousine service[,] approximately
twelve aged and nonserviceable limousines and other vehi-
cles[,] were transferred to the ownership of [FIA] on Decem-
ber 12, 2006." These statements form the basis of the charge
against him.
B.
This case proceeded to trial before a jury in December
2010. During both opening and closing arguments, the prose-
cutor made certain references to Powell and Pavlock as
"liars," and although Powell did not object at the time these
statements were made, he now argues that they amount to
reversible misconduct. At the close of evidence, Powell
requested several jury instructions, three of which are relevant
here. First, he asked that in instructing on the elements of an
offense under 18 U.S.C. § 1519, the district court inform the
jury that the government was required to prove the materiality
of the false statement. Second, he sought an instruction on an
advice-of-counsel defense. Finally, he asked the district judge
UNITED STATES v. POWELL 5
to direct the jury that the statement in the January 29 letter
regarding FIA’s ownership of the Gratz limousines was true
as a matter of law based on the signed, notarized certificates
of title. The judge declined to give each instruction. The jury
subsequently found Powell guilty of the charged offense.
At sentencing, Powell argued that he was a minimal or
minor participant in the offense and therefore was entitled to
a reduction in his base offense level pursuant to U.S.S.G.
§ 3B1.2. The district court rejected this contention and calcu-
lated a total offense level of 14. The district court then sen-
tenced Powell to 15 months’ imprisonment, the low end of the
applicable Guidelines range.
II.
A.
Powell first argues the district court erred in denying his
requested jury instructions. Typically, we review a district
court’s decision regarding whether to give a jury instruction
for abuse of discretion. United States v. Lighty, 616 F.3d 321,
366 (4th Cir. 2010). But "[w]e consider de novo whether a
district court has properly instructed a jury on the statutory
elements of an offense." United States v. Ellis, 121 F.3d 908,
923 (4th Cir. 1997).
1.
Section 1519 of Title 18 of the United States Code estab-
lishes criminal penalties for any person who "knowingly . . .
makes a false entry in any record, document, or tangible
object with the intent to impede, obstruct, or influence the
investigation or proper administration of . . . any case filed
under title 11."1 18 U.S.C. § 1519. Powell asserts that, to
1
Section 1519 provides, in full, the following:
6 UNITED STATES v. POWELL
obtain a conviction under this provision, the government must
prove that the false entry was material, meaning that it had "a
natural tendency to influence, or [was] capable of influencing,
the decision of the decisionmaking body to which it was
addressed." United States v. Wells, 519 U.S. 482, 489 (1997)
(quoting Kungys v. United States, 485 U.S. 759, 770 (1988))
(internal quotation marks omitted). Thus, he claims the dis-
trict court erred in failing to instruct the jury that materiality
was an element of the offense.
When interpreting a statutory provision, "we ‘first and fore-
most strive to implement congressional intent by examining
the plain language of the statute.’" United States v. Abdel-
shafi, 592 F.3d 602, 607 (4th Cir. 2010) (quoting United
States v. Passaro, 577 F.3d 207, 213 (4th Cir. 2009)). "[T]his
first cardinal canon of construction" requires us to "presume
that a legislature says in a statute what it means and means in
a statute what it says there." United States v. Pressley, 359
F.3d 347, 349 (4th Cir. 2004) (quoting Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992)) (internal quotation
marks omitted). Thus, absent an indication from Congress of
a contrary intention, we give statutory terms "their ordinary,
contemporary, common meaning." Abdelshafi, 592 F.3d at
607 (quoting Stephens ex rel. R.E. v. Astrue, 565 F.3d 131,
137 (4th Cir. 2009)) (internal quotation marks omitted). If,
Whoever knowingly alters, destroys, mutilates, conceals, cov-
ers up, falsifies, or makes a false entry in any record, document,
or tangible object with the intent to impede, obstruct, or influence
the investigation or proper administration of any matter within
the jurisdiction of any department or agency of the United States
or any case filed under title 11, or in relation to or contemplation
of any such matter or case, shall be fined under this title, impris-
oned not more than 20 years, or both.
18 U.S.C. § 1519. Only that portion relating to the making of a false entry
in a bankruptcy case is at issue here; our analysis with respect to the non-
existence of a materiality element, however, applies with equal force to all
parts of the statute.
UNITED STATES v. POWELL 7
after doing so, "the words of a statute are unambiguous . . .
this first canon is also the last: judicial inquiry is complete."
Pressley, 359 F.3d at 349 (omission in original) (quoting
Conn. Nat’l Bank, 503 U.S. at 254) (internal quotation marks
omitted).
A plain reading of the pertinent language of § 1519 requires
the government to prove the following elements: (1) the
defendant made a false entry in a record, document, or tangi-
ble object; (2) the defendant did so knowingly; and (3) the
defendant intended to impede, obstruct, or influence the
investigation or proper administration of a case filed under
Title 11 (i.e., a bankruptcy action). See 18 U.S.C. § 1519.
Because "[n]owhere does it further say that a material fact
must be the subject of the false statement or so much as men-
tion materiality," a "natural reading of the full text" demon-
strates that "materiality would not be an element of" § 1519.
Wells, 519 U.S. at 490 (finding that materiality is not an ele-
ment of an offense under 18 U.S.C. § 1014, which criminal-
izes knowingly making a false statement to a federally insured
bank for the purpose of influencing a loan application).
Our interpretation accords with those of our sister circuits,
which, when construing § 1519, have omitted a materiality
requirement.2 The Eleventh Circuit has stated that § 1519
"rather plainly criminalizes the conduct of an individual who
(1) knowingly (2) makes a false entry in a record or document
(3) with intent to impede or influence a federal investigation."
2
We do not read the Second Circuit’s decision in United States v. Ionia
Mgmt. S.A., 555 F.3d 303 (2d Cir. 2009) (per curiam), to support the
imposition of a materiality element. Ionia involved whether a constructive
amendment to the indictment had occurred when the district court failed
to instruct the jury that it had to find a material falsification. See id. at 306,
310. The Second Circuit resolved the issue by finding that any error did
not affect the defendant’s substantial rights and, in any event, was likely
invited. See id. at 310. The court did not consider whether, where material-
ity is not alleged in the indictment, § 1519 imposes a materiality require-
ment. Thus, that case is inapposite.
8 UNITED STATES v. POWELL
United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008).
Likewise, the Eighth Circuit has approved a jury instruction
on § 1519 that imposed no materiality element. See United
States v. Yielding, 657 F.3d 688, 710–12 (8th Cir. 2011).
Accordingly, we hold that the government need not prove
the materiality of the falsification for an offense under 18
U.S.C. § 1519 and that the district court did not err in failing
to instruct the jury on such an element.
2.
Powell next avers that the district court abused its discre-
tion in failing to instruct the jury on the advice-of-counsel
defense. A district court errs in refusing to give a jury instruc-
tion regarding a defense only if the instruction is both an
accurate statement of the law and "has an evidentiary founda-
tion." United States v. Sloley, 19 F.3d 149, 153 (4th Cir.
1994); see also United States v. Gray, 47 F.3d 1359, 1369
(4th Cir. 1995). In general, we "defer to a district court’s deci-
sion to withhold a defense . . . in a proposed jury instruction"
in light of that court’s "superior position . . . to evaluate evi-
dence and formulate the jury instruction." Gray, 47 F.3d at
1368.
A defendant may use his reliance on the legal advice of
counsel "to refute the government’s proof that [he] intended
to commit the offense." United States v. Miller, 658 F.2d 235,
237 (4th Cir. 1981). To be entitled to this defense, the defen-
dant must establish "(a) full disclosure of all pertinent facts to
an [attorney], and (b) good faith reliance on the [attorney’s]
advice." United States v. Butler, 211 F.3d 826, 833 (4th Cir.
2000) (quoting Miller, 658 F.2d at 237) (internal quotation
marks omitted).
Finding that Powell failed to establish an evidentiary foun-
dation, the district court declined to instruct the jury on this
defense. Specifically, the court observed that the evidence in
UNITED STATES v. POWELL 9
the record showed that FIA’s counsel, Clancy, relying on
information Pavlock provided, prepared the letter for Powell’s
signature, but that no evidence indicated that Powell disclosed
facts, pertinent or otherwise, to Clancy. The district court fur-
ther adverted to Clancy’s unrefuted testimony that he acted
only as a scrivener and did not provide legal advice when
drafting the letter. Because of the dearth of evidence support-
ing the application of the advice-of-counsel defense, the dis-
trict court denied the requested instruction.
Having reviewed the record, we agree that the evidence did
not support such a defense. Powell failed to provide evidence
from which a reasonable jury might find that Clancy served
as more than a mere drafter in preparing the letter or that
Powell acted in good faith on Clancy’s legal advice. Accord-
ingly, we find no abuse of discretion.
3.
Likewise, we find no abuse of discretion in the district
court’s refusal to instruct the jury that Powell’s statement that
FIA acquired ownership of the Gratz limousines was true as
a matter of law. The parties agree that, because the title trans-
fers occurred in Pennsylvania, Pennsylvania law controls the
issue of ownership of the vehicles. Powell contends that,
under this law, the signed certificates of title established that
FIA became the vehicles’ owner as reported in the January 29
letter.
Pennsylvania law provides:
In the event of the sale or transfer of the ownership
of a vehicle within this Commonwealth, the owner
shall execute an assignment and warranty of title to
the transferee in the space provided on the certificate
or as the department prescribes, sworn to before a
notary public . . . and deliver the certificate to the
transferee at the time of the delivery of the vehicle.
10 UNITED STATES v. POWELL
75 Pa. Cons. Stat. § 1111(a). Pennsylvania courts have clari-
fied, however, that "a certificate of title is merely evidence of
ownership . . . and is not conclusive." Wasilko v. Home Mut.
Cas. Co., 232 A.2d 60, 61 (Pa. Super. Ct. 1967); see, e.g., In
re Estate of Summers, 226 A.2d 197, 199 (Pa. 1967). And
"[w]here a certificate of title to an automobile is fraudulently
procured by false information it is void ab initio." Pa. State
Police v. Bradley, 297 A.2d 554, 556 (Pa. Commw. Ct. 1972)
(alteration in original) (quoting Hertz Corp. v. Hardy, 178
A.2d 833, 838 (Pa. Super. Ct. 1962)) (internal quotation
marks omitted).
As the district court explained in declining to provide the
jury instruction and, more thoroughly, in denying Powell’s
motions for judgment of acquittal and for a new trial, there
was sufficient evidence from which a reasonable jury could
conclude that Powell obtained title to the limousines on behalf
of FIA by fraud or theft by deception, so the titles did not, in
fact, establish ownership. Specifically, the government sub-
mitted evidence that McCarrell, the Gratzes’ accountant,
signed title to FIA based on Powell’s false representation that
FIA was entitled to the vehicles. The jury could further infer
that Powell knew FIA was not the owner of the limousines.
Based on our review of the record and in light of the superior
position of the district court to consider the evidence, we
accept the district court’s well-reasoned and considered analy-
sis.
Where "the evidence supports different, reasonable inter-
pretations," it is the jury’s task to determine which interpreta-
tion is correct. United States v. Lentz, 383 F.3d 191, 199 (4th
Cir. 2004) (quoting United States v. Wilson, 118 F.3d 228,
234 (4th Cir. 1997)) (internal quotation marks omitted).
Because the evidence here permitted multiple readings, the
district court was well within the bounds of its discretion to
decline to give Powell’s instruction and, instead, to permit the
jury to ascertain "which interpretation to believe." Id.
UNITED STATES v. POWELL 11
B.
Powell urges that, by referring to Pavlock and Powell as
"liars" during opening and closing arguments, the prosecutor
committed reversible misconduct. In general, to reverse due
to a prosecutor’s improper remarks, we must find that (1) the
remarks were improper and (2) they "so prejudiced the defen-
dant’s substantial rights that the defendant was denied a fair
trial." Lighty, 616 F.3d at 359. Because Powell failed to object
to these comments before the district court, however, we
review only for plain error. See United States v. Thomas, 669
F.3d 421, 424 (4th Cir. 2012); United States v. Sanchez, 118
F.3d 192, 197 (4th Cir. 1997).
To secure relief under the plain-error standard, a defendant
must show "(1) error, (2) that is plain, and (3) that affect[s]
substantial rights." Thomas, 669 F.3d at 424 (alteration in
original) (quoting Johnson v. United States, 520 U.S. 461,
466–67 (1997)) (internal quotation marks omitted). Even if he
satisfies these conditions, we retain discretion regarding
whether to correct the error, and we will "exercise that discre-
tion only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." United States v.
Knight, 606 F.3d 171, 177–78 (4th Cir. 2010) (quoting United
States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009))
(internal quotation marks omitted).
We have not determined whether describing a defendant as
a "liar" is, per se, improper.3 But the Second, Seventh, Eighth,
and Ninth Circuits have held that the government may refer
to a defendant as a liar under some circumstances. E.g.,
3
Powell argues that United States v. Weatherless, 734 F.2d 179 (4th Cir.
1984), establishes that it is improper for a prosecutor to refer to a defen-
dant as a "liar." The prosecutor in Weatherless, however, also used far
more inflammatory language. See id. at 181 (reporting that the prosecutor
said, inter alia, that the defendant was a loser and "a sick man"). There-
fore, that case fails to make plain that a prosecutor may never use the term
"liar" to describe a defendant.
12 UNITED STATES v. POWELL
United States v. Moreland, 622 F.3d 1147, 1161–62 (9th Cir.
2010) (allowing where based on reasonable inferences from
the evidence); United States v. Coriaty, 300 F.3d 244, 255 (2d
Cir. 2002) (permitting as long as not excessive or inflamma-
tory); United States v. Shoff, 151 F.3d 889, 893 (8th Cir.
1998) (finding no misconduct as long as the prosecutor is
arguing about the evidence); United States v. Manos, 848 F.2d
1427, 1437 (7th Cir. 1988) (deducing no undue prejudice
from labeling "the teller of [a] falsity a liar"). In light of this
authority from our sister circuits, the government’s remarks
were not clearly improper, and Powell has failed to establish
plain error. Cf. United States v. Strieper, 666 F.3d 288, 295
(4th Cir. 2012) ("[W]here we have yet to speak directly on a
legal issue and other circuits are split, a district court does not
commit plain error by following the reasoning of another cir-
cuit.").
C.
Section 3B1.2 of the Sentencing Guidelines provides for
various reductions to a defendant’s offense level if the defen-
dant "play[ed] a part in committing the offense that makes
him substantially less culpable than the average participant."
U.S.S.G. § 3B1.2 & cmt. n.3(A). The defendant bears "the
burden of proving, by a preponderance of the evidence, that
he is entitled to a mitigating role adjustment in sentencing."
United States v. Pratt, 239 F.3d 640, 645 (4th Cir. 2001). We
review for clear error the district court’s determination that
Powell failed to show his entitlement to such an adjustment.
See United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)
("In assessing a challenge to a sentencing court’s application
of the Guidelines, we review the court’s factual findings for
clear error and its legal conclusions de novo."); Pratt, 239
F.3d at 646.
Powell urges that the evidence plainly demonstrates that he
was minimally culpable in Pavlock’s fraudulent scheme. We
have declared, however, that the "critical inquiry" for a sen-
UNITED STATES v. POWELL 13
tencing court, in considering a § 3B1.2 adjustment, is "not just
whether the defendant has done fewer ‘bad acts’ than his co-
defendants, but whether the defendant’s conduct is material or
essential to committing the offense." Pratt, 239 F.3d at 646
(quoting United States v. Palinkas, 938 F.2d 456, 460 (4th
Cir. 1991)) (internal quotation marks omitted). That is, the
sentencing court must measure the defendant’s "individual
acts and relative culpability against the elements of the
offense of conviction," not merely against the criminal enter-
prise as a whole. Id. (quoting Palinkas, 938 F.2d at 460)
(internal quotation marks omitted).
Regardless of whether Powell may have played only a
small role in Pavlock’s overall scheme, the district court could
reasonably find that as to the offense of conviction—making
a false entry in a bankruptcy-related document—his conduct
was essential and material. The jury found Powell signed the
January 29 letter and submitted it to Fluharty with knowledge
that it contained at least one false statement and with intent
to obstruct, impede, or influence the bankruptcy. Thus, the
district court did not clearly err in rejecting this adjustment.
D.
Finally, Powell claims that his trial counsel was constitu-
tionally ineffective. "Claims of ineffective assistance of coun-
sel are normally raised before the district court via 28 U.S.C.
§ 2255 and are cognizable on direct appeal only where it con-
clusively appears on the record that defense counsel did not
provide effective representation." United States v. Allen, 491
F.3d 178, 191–92 (4th Cir. 2007). Here, we cannot say the
record conclusively establishes that the performance of Pow-
ell’s counsel was deficient or prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Thus, Powell’s claim
is premature. He may, of course, reassert it through a § 2255
habeas petition.
14 UNITED STATES v. POWELL
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.