United States v. Dodt

• Decision Date: 27 December 2021
• Docket Number: 20-4115
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD DODT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DONALD DODT, Defendant-Appellant.

No. 20-4115

United States Court of Appeals, Fourth Circuit

December 27, 2021

UNPUBLISHED

Argued: October 29, 2021

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn Jr., District Judge. (3:15-cr-00213-MOC-DSC-13)

ARGUED:

Robert C. Carpenter, ALLEN STAHL &KILBOURNE, PLLC, Asheville, North Carolina, for Appellant.

Daniel J. Kane, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF:

Brian C. Rabbitt, Acting Assistant Attorney General, Jennifer Farer, Philip Trout, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before NIEMEYER and KING, Circuit Judges, and Thomas T. CULLEN, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM

Defendant Donald Dodt appeals from the criminal judgment entered against him in February 2020 in the Western District of North Carolina for his involvement in a Costa Rica-based telemarketing fraud scheme. In September 2015, Dodt was charged with conspiracy to commit mail fraud and wire fraud, conspiracy to commit money laundering, and multiple substantive offenses, including mail fraud, wire fraud, and international money laundering. At the conclusion of his jury trial in May 2019, Dodt was found guilty of all 22 charges submitted to the jury and deemed eligible for a statutory sentencing enhancement on the fraud-related conspiracy and substantive offenses. The district court then sentenced him to 90 months in prison. On appeal, Dodt challenges, inter alia, the court's denial of his motions for judgments of acquittal and its application of the sentencing enhancement. As explained herein, we are satisfied that Dodt was properly convicted on 11 of the 22 charges and subjected to the sentencing enhancement. We conclude, however, that there was insufficient evidence to convict him on the 11 other charges. We thus affirm in part, vacate in part, and remand for resentencing and amendment of the judgment.

I.

The trial evidence reflected that the telemarketing fraud scheme at issue in this matter was led by a man named Elliott Rosenberg. The Rosenberg scheme operated numerous call centers throughout Costa Rica. Dodt's coconspirators would call unknowing victims and induce them to transfer money in order to claim fictious sweepstakes prizes. Relevant to Dodt's participation in the Rosenberg scheme, from

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October 2011 to May 2014, Rosenberg paid a Dodt-owned, Costa Rica-based company - named Call Master - to provide Voice over Internet Protocol ("VoIP") phone lines to the telemarketing fraud scheme. The VoIP technology allowed the fraudulent calls to appear as though they originated within the United States, rather than from Costa Rica.

From the outset of the scheme, Rosenberg informed Dodt that he would need New York and Washington, D.C. telephone numbers because his associates would purport to be "calling from the U.S. government" or other legitimate entities. See J.A. 355.^[1] There was no written contract between Rosenberg and Dodt's company, and Dodt was paid in cash because it was important to Rosenberg that the payments remain anonymous. Additionally, Dodt said he would alert Rosenberg if Dodt received any inquiry or subpoena into any of the phone lines. Throughout the relevant three-and-a-half-year period, Dodt visited Rosenberg's call centers in Costa Rica, oftentimes overhearing telephone conversations between his coconspirators and their victims. Dodt also followed through on his promise to alert Rosenberg to any inquiry of concern from law enforcement or other entities.^[2]

The 22 charged offenses submitted to the jury included the following: conspiracy to commit mail and wire fraud, in contravention of 18 U.S.C. § 1349 (Count One); mail fraud, in violation of 18 U.S.C. § 1341 (Counts Two and Three); wire fraud, in

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contravention of 18 U.S.C. § 1343 (Counts Nine through Sixteen); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Seventeen); and international money laundering, in contravention of 18 U.S.C. § 1956(a)(2)(A) (Counts Twenty-Two through Thirty-One).^[3] Each substantive fraud and money laundering charge included an allegation of aiding and abetting under 18 U.S.C. § 2 and was also tried under a theory of Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946) (recognizing that substantive crimes committed by coconspirators in furtherance of a conspiracy may be "attribut[ed] to the [other coconspirators] for the purpose of holding them responsible for the substantive offense," when those acts are reasonably foreseeable as a necessary or natural consequence of the unlawful agreement). Additionally, pursuant to 18 U.S.C. § 2326(2)(A), the prosecution sought a sentencing enhancement that applies in circumstances where a person is convicted of mail or wire fraud, or conspiracy to commit mail or wire fraud, "in connection with the conduct of telemarketing" and has "victimized ten or more persons over the age of 55."

During Dodt's four-day trial in Charlotte, the prosecution presented...