United States v. Powell

• Decision Date: 16 May 2012
• Docket Number: No. 11–4724.,11–4724.
• Citation: 680 F.3d 350
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard W. POWELL, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

680 F.3d 350

UNITED STATES of America, Plaintiff–Appellee,

v.Richard W. POWELL, Jr., Defendant–Appellant.

No. 11–4724.

United States Court of Appeals,Fourth Circuit.

Argued: March 22, 2012.

Decided: May 16, 2012.

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.

Before SHEDD, KEENAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge SHEDD and Judge KEENAN joined.

OPINION

FLOYD, Circuit Judge:

Appellant Richard Powell appeals his conviction and sentence 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 prosecutor committed reversible misconduct, defense counsel provided 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 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, McCarrell signed the titles of the limousines to FIA—not GIA—and deliveredthe vehicles to Powell. Although Charles Gratz was not present, McCarrell signed Mr. Gratz's name to the certificates of title and notarized the signatures. There is no evidence, 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 Pavlock directed his associate, Stephen Graham, to put GIA into Chapter 11 bankruptcy. As a result, without Golden's knowledge or consent, Graham filed a Chapter 11 bankruptcy petition 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 limousines, so Fluharty initially was unaware that GIA had purchased 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 2008 after several checks Powell sent to complete the purchase 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. Thereafter, in a letter dated January 29, 2009, Powell wrote Fluharty regarding the Gratz limousines. Although the January 29 letter 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 Graham, 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 vehicles[,] were transferred to the ownership of [FIA] on December 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 prosecutor 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 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 calculated a total offense level of 14. The district court then sentenced 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 establishes 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.” ¹18 U.S.C. § 1519. Powell asserts that, to 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, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)) (internal quotation marks omitted). Thus, he claims the district court erred in failing to instruct the jury that materiality was an element of the offense.

When interpreting a statutory provision, “we ‘first and foremost strive to implement congressional intent by examining the plain language of the statute.’ ” United States v. Abdelshafi, 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, 112 S.Ct. 1146, 117 L.Ed.2d 391 (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, 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, 112 S.Ct. 1146) (internal quotation marks omitted).

A plain reading of the pertinent language of § 1519 requires the governmentto prove the following elements: (1) the defendant made a false entry in a record, document, or tangible 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). See18 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 mention materiality,” a “natural reading of the full text” demonstrates that “materiality would not be an element of” § 1519. Wells, 519 U.S....