United States v. Andrew Chance

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4142

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ANDREW ISAAC CHANCE,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00760-AW-1)

Submitted: September 14, 2012 Decided: November 6, 2012

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Baltimore, Maryland, Meghan
S. Skelton, Staff Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Kathryn Keneally,
Assistant Attorney General, Frank P. Cihlar, Gregory Victor
Davis, Elissa Hart-Mahan, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

In this appeal, Andrew Chance (Defendant) raises numerous

evidentiary challenges to his convictions, following a jury

trial, on one count of filing a retaliatory lien against a

government employee, 18 U.S.C. § 1521, and three counts of

filing a false claim against the government, id. § 287. We

affirm.

The statutory section pertaining to the retaliatory lien

count provides, in relevant part:

Whoever files, attempts to file, or conspires to file,
in any public record or in any private record which is
generally available to the public, any false lien or
encumbrance against the real or personal property of
an [officer or employee of the United States], on
account of the performance of official duties by that
individual, knowing or having reason to know that such
lien or encumbrance is false or contains any
materially false, fictitious, or fraudulent statement
or representation, shall be fined under this title or
imprisoned for not more than 10 years, or both.

Id. § 1521. The statutory section pertaining to the false claim

counts provides, in relevant part:

Whoever makes or presents to any person or officer in
the civil . . . service of the United States, or to
any department or agency thereof, any claim upon or
against the United States, or any department or agency
thereof, knowing such claim to be false, fictitious,
or fraudulent, shall be imprisoned not more than five
years and shall be subject to a fine in the amount
provided in this title.

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Id. § 287.

With respect to the single count of filing a retaliatory

lien against a government employee, the undisputed evidence at

Defendant’s trial established the following. On or about July

25, 2007, a federal jury convicted Defendant on one count of

filing a false claim against the government based upon

Defendant’s conduct of knowingly filing a federal income tax

return which falsely claimed his entitlement to a refund in the

amount of $306,753.00. See id. § 287. Defendant was sentenced

to twenty-seven months’ imprisonment for such crime.

Approximately two months after his release from federal

prison for such crime, on or about August 14, 2009, Defendant

filed a UCC Financing Statement with the Maryland Department of

Assessments and Taxation (the UCC Financing Statement), in which

Defendant listed himself as the secured party and claimed that

Steven Dunne (Dunne), the Assistant United States Attorney who

had prosecuted him on the 2007 false claim charge, owed him

$1,313,000,000.00 in tort damages. Defendant further claimed in

the UCC Financing Statement that “Said Tort Claim becomes a

perfected claim/lien after 90 days (billing time period), and

said lien becomes an ‘account receivable,’ and the account

receivable becomes the private property of the Claimant . . . .”

(J.A. 832). Defendant paid the appropriate filing fee to file

the UCC Financing Statement. The Maryland Department of

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Assessments and Taxation accepted the UCC Filing Statement as

filed and made it a publically available record.

Following Defendant’s arrest on the charges in the present

case and after being advised of his constitutional right to

remain silent, Defendant told the arresting officers that he

filed the lien against Dunne because Dunne had “done [him]

wrong” by prosecuting him. (J.A. 537).

With respect to the three counts of filing a false claim

against the government, the undisputed evidence at Defendant’s

trial established the following. In April 2010, the United

States Internal Revenue Service (the IRS) issued an employer

identification number to the Andrew Chance Trust. In September

2010, Defendant filed three federal income tax returns for tax

years 2007, 2008, and 2009, which Defendant had signed under

penalty of perjury. Each return listed the Andrew Chance Trust

as the taxpayer and listed the employment identification number

that had been issued by the IRS to the Andrew Chance Trust in

April 2010.

For each of the three years at issue, the returns falsely

reported trust income of $900,000.00, falsely reported

$300,000.00 of such income had been withheld by the government,

and falsely reported that a $300,000.00 refund was due to the

trust. Defendant admitted under oath at trial that he knew the

trust had not generated income of $900,000.00 for any of the

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three years at issue. He also admitted that he knew the trust

did not have $300,000.00 in withholding in any account with the

government for the same three years, but explained that the

refund figures on the returns corresponded to a total of

$900,000.00 that he believes he is owed in reparations because

he is a descendant of slaves.

The district court sentenced Defendant to sixty-five

months’ imprisonment with respect to the retaliatory lien count

and to sixty months’ imprisonment on each of the three false

claim counts to run concurrently with his sentence on the

retaliatory lien count. This timely appeal followed in which

Defendant challenges his convictions on various evidentiary

grounds.

II.

Defendant first challenges all of his convictions on the

ground that the district court abused its discretion by granting

the government’s motion in limine to exclude the testimony of

the following mental-health experts he offered to rebut the

government’s evidence on the specific intent element of the

retaliatory lien count and the false claim counts: (1) forensic

psychiatrist Dr. Martin Brandes; (2) neuropsychologist Dr.

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Victoria Starbuck; and (3) neurologist/neuropsychiatrist Dr.

Richard Restak. 1

Defendant’s challenge to his convictions is without merit.

The law is well settled that a district court is afforded wide

discretion in determining the admissibility of evidence at

trial, United States v. Abel, 469 U.S. 45, 54 (1984), and “the

district court’s evidentiary determinations should not be

overturned except under the most extraordinary of

circumstances,” United States v. Aramony, 88 F.3d 1369, 1377

(4th Cir. 1996) (internal quotation marks omitted). Here, the

district court did not abuse its discretion in granting the

government’s motion in limine to exclude the expert testimony of

Drs. Brandes, Starbuck, and Restak.

Of relevance to this issue, without objection by Defendant,

the district court charged the jury as follows regarding the

specific intent element of Defendant’s retaliatory lien count:

“the defendant knew or had reason to know that such lien or

encumbrance contained a materially false or fictitious statement

1
In deciding this issue on appeal, Defendant asks us to
consider transcripts of testimony that the above named mental-
health experts gave during his sentencing hearing in this case
as well as written reports prepared by such proposed experts
which the district court did not have prior to ruling on the
government’s motion in limine. As the district court did not
have the benefit of such material at the time it ruled on the
motion, we will not consider such information in deciding this
issue.

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or representation.” (J.A. 720). Without objection by

Defendant, the district court charged the jury as follows

regarding the specific intent element of his false claim counts:

“that the defendant presented the claim knowing that it was

false or fictitious as to a material fact.” (J.A. 722). Of

relevance to this issue, the district court further instructed

the jury without objection:

A claim is false if it was untrue when made and
was then known to be untrue by the person making it or
causing it to be made.

A claim is fictitious if it is not real or if it
is done – or if it does not correspond to what
actually happened and the person making it or causing
it to be made knew that it was not real at the time it
was made.

* * *

An act is done knowingly if it is done
voluntarily and purposefully and not done by mistake,
carelessness or other innocent reasons. However, the
government does not have to prove that the defendant
knew of the relevant criminal provisions governing his
conduct as long as it proves – the government – proves
that the defendant knew the claim was false or
fictitious.

(J.A. 724).

At trial, Defendant did not dispute that the events in this

case occurred more or less as described by the government’s

evidence. Defendant also did not raise a federal insanity

defense under the Insanity Defense Reform Act (the IDRA), 18

U.S.C. § 17, which act requires a defendant to prove by clear

and convincing evidence “that, at the time of the commission of
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the acts constituting the offense, the defendant, as a result of

a severe mental disease or defect, was unable to appreciate the

nature and quality or the wrongfulness of his acts,” id.

§ 17(a). 2 Rather, the crux of Defendant’s defense at trial was

that his actions were the result of a confused and irrational

mind. In support of this defense, Defendant sought to have Drs.

Brandes, Starbuck, and Restak testify that he has a rigid

personality style, is mentally inflexible, has certainty in the

righteousness of his behavior, and is unwilling to consider

alternative explanations. According to Defendant, the doctors’

testimony would negate the government’s evidence regarding the

specific intent element of his charged crimes. Notably, prior

to ruling on the government’s motion in limine to exclude Drs.

Brandes, Starbuck, and Restak from testifying as expert

witnesses for the defense, the district court only had the

benefit of such doctors’ written reports to explain the

substance of their proposed testimony. 3

2
The IDRA further specifies that “[m]ental disease or
defect does not otherwise constitute a defense.” 18 U.S.C.
§ 17(a).
3
After the district court granted the government’s motion
in limine and after the government had presented the majority of
its evidence against Defendant at trial, Defendant requested
that the district court allow Drs. Brandes, Starbuck, and Restak
to testify in court outside the presence of the jury. Upon the
district court’s denial of such request, Defendant moved to
proffer additional written reports by Drs. Brandes, Starbuck,
(Continued)
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In granting the government’s motion in limine to exclude

the expert testimony of Drs. Brandes, Starbuck, and Restak, the

district court wrote a thorough, detailed, and well-reasoned

memorandum opinion. The crux of the district court’s reasoning

in granting the motion was that the conclusions about Defendant

offered by his proposed mental-health expert witnesses fall into

the category of defenses that Congress intended to preclude

under the IDRA, which act “expressly prohibits the use of any

‘[m]ental disease or defect’ as a defense unless it demonstrates

that the defendant ‘was unable to appreciate the nature and

quality or the wrongfulness of his acts,’” United States v.

Worrell, 313 F.3d 867, 872 (4th Cir. 2002) (quoting 18 U.S.C.

§ 17), “leav[ing] no room for a defense that raises ‘any form of

legal excuse based upon one’s lack of volitional control’

and Restak. The district court denied this request also,
characterizing both requests as nothing more than an attempt to
take a second bite at the apple. According to the district
court, allowing Defendant to proffer the live testimony of his
proposed expert witnesses and submit additional reports at such
a late point in the trial would severely prejudice the
government by giving it “little time to find and prepare its own
expert witnesses, [while] Defendant has had the advantage of
hearing the [g]overnment present its case-in-chief and the
majority of its evidence against Defendant.” (J.A. 490). In
the present appeal, Defendant does not challenge the district
court’s denial of these requests. Accordingly, we do not
consider any information offered by Defendant in such requests
in deciding whether the district court abused its discretion in
granting the government’s motion in limine.

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including ‘a diminished ability or failure to reflect adequately

upon the consequences or nature of one’s actions,’” id. (quoting

United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990)).

We fully agree with the district court’s reasoning in granting

the government’s motion in limine, as set forth in the district

court’s memorandum. See United States v. Chance, 2011 WL

5826675 (D.Md. November 17, 2011) (memorandum opinion).

Accordingly, we rely on such reasoning to hold the district

court did not abuse its discretion in granting such motion.

III.

Defendant challenges his retaliatory lien conviction on the

basis that the district court abused its discretion by granting

the government’s motion in limine to exclude the testimony of J.

Kimon Yiasaides (Yiasaides), his proposed expert witness on the

use of bonds and liens in this case and commercial disputes.

Notably, Defendant did not provide the district court with a

report from this proposed expert.

The district court granted the government’s motion in

limine with respect to Yiasaides on the basis that his expertise

was irrelevant and unnecessary to the case considering the

relatively simple concepts at issue with respect to whether

Defendant filed a false lien against a federal prosecutor.

Additionally, the district court concluded that such expert

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testimony would likely only confuse or mislead the jury, and

that if it became evident during trial that jurors required

specialized knowledge to understand the evidence or determine a

fact in issue, it would reconsider its ruling. The district

court never deemed it necessary to reconsider its ruling.

Having reviewed the relevant materials on this issue,

including the record and the parties’ briefs, we hold the

district court did not abuse its discretion in granting the

government’s motion in limine to exclude the expert testimony of

Yiasaides.

IV.

We have carefully reviewed Defendant’s remaining

assignments of error, including his argument that the district

court improperly restricted his cross-examination of Dunne and

his argument that the district court improperly restricted the

redirect examination of himself as a witness, and find such

assignments of error to be without merit.

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

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