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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12104
Non-Argument Calendar
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D.C. Docket No. 4:19-cr-10017-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD HOWARD CONKRIGHT,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 11, 2021)
Before JILL PRYOR, LAGOA and BRASHER, Circuit Judges.
PER CURIAM:
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Donald Conkright appeals his convictions and sentence for conspiracy to
commit money laundering and money laundering. After careful review, we affirm.
I.
Conkright was one of several co-conspirators who defrauded a Texas school
district. The school district contracted with a construction company to, among
other things, build a new elementary school. A group of co-conspirators
impersonated a senior employee of the construction company and convinced the
school district to wire the co-defendants almost $2 million in payments intended as
compensation for construction work. The wires were sent to a bank account in
Conkright’s name. Upon receipt of the funds, Conkright immediately began
spending, withdrawing, and transferring the money.
A grand jury indicted Conkright on one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h); one count of money
laundering by concealment, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and two
counts of money laundering by engaging in transactions derived from a criminal
activity, in violation of 18 U.S.C. § 1957. Conkright pled not guilty and proceeded
to a jury trial. His defense, which is relevant to this appeal, was that he was one of
several suitors (his co-conspirators) for a woman who purported to be an heiress to
a fortune and whose money was handled by a trust that had global business
interests. Conkright maintained that he believed he was managing the heiress’s
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money when he committed the offense conduct and therefore did not knowingly
commit any crime.
Before trial, Conkright notified the district court that he intended to call an
expert witness to testify about his mental condition at the time of the offenses. The
government filed a motion to exclude the expert’s testimony under Rules 403 and
704 of the Federal Rules of Evidence. The government argued that the expert’s
testimony was “likely to be classic justification and mitigation evidence, not true
lack-of-mens-rea evidence.” Doc. 26 at 8.1 The government also filed a motion to
exclude certain voicemail messages between Conkright’s co-conspirators and
unindicted third parties, arguing that they were irrelevant and may confuse the
jury, in violation of Rules 401, 402, and 403 of the Federal Rules of Evidence.
Conkright responded in opposition to the government’s motions. As to his
proposed expert testimony, Conkright argued that his expert would in fact testify
that he lacked the requisite mens rea. As to the voicemail messages, he argued that
they provided “extremely relevant” context to his defense, would not confuse the
jury, and were “inextricably intertwined with the other phone calls and voicemail
evidence” in the case. Doc. 34 at 2, 4 (internal quotation marks omitted).
Conkright did not argue that exclusion of the expert’s testimony or the voicemail
messages would be unconstitutional.
1
“Doc.” numbers refer to the district court’s docket entries.
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A magistrate judge denied without prejudice both motions in all respects
relevant to this appeal, concluding that the motions were better decided in the
context of trial. At trial, Conkright proffered what the expert would testify to, and
the district court asked the expert to testify outside the jury’s presence. The expert
testified that Conkright’s personal history and mental health challenges made him
more susceptible to being manipulated into participating in conspiracies. The
government renewed its objections, and Conkright renewed his arguments in
support of permitting the expert to testify. Again, Conkright did not argue that
excluding the expert’s testimony would be unconstitutional. Reasoning that the
evidence had the potential to confuse the jury, the district court granted the
government’s motion and excluded the expert’s testimony.
When the issue of the voicemail messages came up at trial, Conkright
renewed his argument that messages between co-conspirators and unindicted third
parties contextualized the offenses for which he was charged. He did not argue
that exclusion of the messages would violate the Constitution. The district court
excluded the voicemail messages except to the extent they directly involved
Conkright.
Conkright testified in his defense. He testified that he developed a
relationship with a woman named Lola Mullins online and that, after a year of
communicating, she told him she would receive a large inheritance if she got
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married. He testified that Mullins told him that the money was held in a trust and
tied up in one or more businesses. He testified that he was going to be named
“acting CEO and pay the existing trust bills off to bring the company back up to
zero account,” at which point he and Mullins would marry and get the inheritance.
Doc. 94 at 16. The alleged trustee, David Sanders, instructed Conkright to open
several bank accounts “[t]o help pay off the bills.” Id. at 18.
Conkright testified that he did these things to be with Mullins, but that he
thought the “whole time” that he may have been money laundering and told his co-
conspirators that what they were doing “look[ed] like fraud.” Id. at 53, 58. He
acknowledged sending text messages to Lola telling her that he would “do jail time
on this, bad checks and money laundering,” and that he had “already broken the
law.” Id. at 56. And he acknowledged making extravagant purchases with the
money in his bank accounts, including Rolex watches and a BMW car.
The jury found Conkright guilty on all counts. In anticipation of sentencing,
the probation office prepared a presentence investigation report (“PSR”). As
relevant to this appeal, the PSR applied a two-level increase to his base offense
level for an offense involving sophisticated laundering. See U.S.S.G.
§ 2S1.1(b)(3). Based on a total offense level of 27 and a criminal history category
of I, the PSR calculated Conkright’s guidelines range as 70 to 87 months’
imprisonment.
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Conkright objected to the sophisticated laundering enhancement, arguing
that his personal participation was not sufficiently sophisticated. The district court
overruled his objection and applied the enhancement. The government
recommended a sentence of 71 months’ imprisonment, representing that it was the
“high end of the sentencing range if the sophisticated [laundering] enhancement
did not apply.” Doc. 90 at 34. After considering the sentencing factors set forth in
18 U.S.C. § 2553(a), the district court accepted the government’s recommendation,
“stat[ing] for the record that in the event that the special enhancement did not
apply, [the court] would have applied the same sentence that [it] intend[ed] to
impose today, in any event.” Id. at 35.
This is Conkright’s appeal.
II.
Generally we review de novo questions of constitutional law, but we review
such a question only for plain error when a party raises it for the first time on
appeal. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). Plain error
requires: (1) an error; (2) that was plain; (3) that affected the defendant’s
substantial rights; and (4) that seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id. A plain error affects a defendant’s
substantial rights if he can show a reasonable probability that, but for the error, the
outcome of the proceeding would have been different. United States v. Reed, 941
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F.3d 1018, 1021 (11th Cir. 2019). We consider the entire record when determining
whether an error was plain. Id. When a defendant cannot meet one plain-error
prong, we need not reach the other prongs. United States v. Carpenter, 803
F.3d 1224, 1238-39 (11th Cir. 2015).
We review the district court’s application of the Sentencing Guidelines de
novo. United States v. Newman, 614 F.3d 1232, 1235 (11th Cir. 2010). An error
in the district court’s calculation of a defendant’s guidelines range is reversible
absent harmless error. United States v. Scott, 441 F.3d 1322, 1329–30 (11th Cir.
2006). An error in calculating a defendant’s guidelines range is harmless if the
district court stated on the record that it would impose the same sentence even if it
decided guidelines calculation issues in the defendant’s favor and, assuming the
lower range applied, the final sentence was reasonable taking into account the
factors set forth in 18 U.S.C. § 3553(a). 2 See United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006).
III.
Conkright challenges his convictions, arguing that the district court’s
exclusion of expert testimony regarding his mental health and of voicemail
messages between co-conspirators and unindicted third parties violated his right to
a fair trial in violation of the Fifth and Sixth Amendments. He also challenges his
2
See infra Part III.B.
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sentence, arguing that the district court reversibly erred in applying the
sophisticated laundering enhancement under U.S.S.G. § 2S1.1(b)(3). For the
reasons that follow, we disagree.
A. Conkright’s Convictions
Conkright argues that the expert testimony and voicemail messages would
have negated the requisite mens rea for his offenses, and that the district court’s
decision to exclude the evidence deprived him of the opportunity to present such
evidence in violation of the Fifth and Sixth Amendments. 3 Conkright did not
advance this challenge in the district court, so we review only for plain error.
Nash, 438 F.3d at 1304.
The Sixth Amendment guarantees defendants the right to have compulsory
process for obtaining witnesses in their favor. U.S. Const. amend. VI. “Implicit in
this right—as well as in the basic notion of due process of law in general . . . —is
the idea that criminal defendants must be afforded the opportunity to present
evidence in their favor.” United States v. Hurn, 368 F.3d 1359, 1363 (11th Cir.
2004) (citing U.S. Const. amend. V) (internal quotation marks omitted). A
defendant does not receive a fair trial if the evidence excluded is “material in the
3
Conkright also argues, for the first time in his reply brief, that the district court abused
its discretion in its analysis under the Federal Rules of Evidence. Issues raised for the first time
in a reply brief are, however, waived. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir.
2004). We therefore do not address this argument.
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sense of a crucial, critical, highly significant factor.” Id.
Even assuming Conkright could show that the district court erred, and that
the error was plain, he cannot show that it affected his substantial rights.
Conkright testified that he believed he was laundering money, and the jury was
permitted to infer his mens rea from his testimony. See Reed, 941 F.3d at 1021
(“[T]he jury could have inferred that Reed knew he was a felon from his
stipulation and from his testimony that he knew he was not supposed to have a
gun.”). Thus, Conkright cannot show any reversible error as regards his
convictions, and we affirm them.
B. Conkright’s Sentence
Conkright argues that the district court erred in applying the sophisticated
laundering enhancement, explaining that he acted at the direction of others, never
solicited funds by using a fraudulent email or name, and “never set up any kind of
shell company to hide what was going on.” Appellant Br. at 37. “He simply
opened bank accounts in his own name” and then made withdrawals and
purchases, all as directed by Mullins and Sanders. Id. However, Conkright does
not acknowledge in his brief the district court’s express statement that it would
have imposed a 71-month sentence even in the absence of the challenged
enhancement. Under these circumstances, we will affirm the sentence, provided it
would have been reasonable under the more-favorable guidelines calculation.
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Keene, 470 F.3d at 1349. Our task is to determine whether the court’s sentence
was reasonable. 4 For that inquiry we “assum[e] exactly the same conduct and
other factors in the case, but us[e] an advisory range” that would have applied had
the district court decided the contested issue in the defendant’s favor. Id. at 1349–
50.
We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard, United States v. Irey, 612 F.3d 1160, 1186 (11th Cir.
2010) (en banc), and examine the sentence’s reasonableness under the totality of
the circumstances, United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
The district court is required to impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a
particular sentence, the court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guidelines range, the pertinent policy statements of the
4
Conkright arguably has waived any potential argument that his sentence was
unreasonable by failing to argue its reasonableness on appeal. See United States v. Curtis, 380
F.3d 1308, 1310 (11th Cir. 2004). As we explain above, however, Conkright’s challenge fails on
the merits.
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Sentencing Commission, the need to avoid unwarranted sentencing disparities, and
the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
Even if the district court had used Conkright’s preferred guidelines range as
the lodestar for sentencing, the resulting sentence of 71 months’ imprisonment—a
within-guidelines sentence—would have been within the district court’s discretion
to impose. The district court weighed on the one hand Conkright’s “history and
characteristics,” explaining that he had dome “some good things,” including caring
for neighbors and friends. Doc. 90 at 26–27. On the other hand, the court weighed
“the harm that he caused” to the school district—a loss amount equal to 36
teachers’ salaries or “feeding 16,000 students 798,286 lunches.” Id. at 27–28.
Given that the district court carefully weighed the § 3553(a) factors to arrive at a
sentence that was within the more favorable guidelines calculation, the sentence
the court imposed was reasonable. Thus, any error in the guidelines calculation
was harmless, and we affirm Conkright’s sentence.
IV.
For the foregoing reasons, we affirm Conkright’s convictions and sentence.
AFFIRMED.
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United States v. Donald Howard Conkright
Combined Opinion