United States v. David Mayhew
16-4020
| 4th Cir. | Nov 14, 2017Background
- From Jan 2009 to May 2012 Mayhew and Ron McCullough ran a Ponzi-style FOREX investment scheme in Raleigh, NC, soliciting funds from about 19 victims and obtaining more than $2 million.
- McCullough was the public face and primary solicitor; Mayhew was less visible but identified by victims as McCullough’s partner and the main trader.
- Scheme: small initial investments returned with promised gains to build trust, then larger investments solicited and misappropriated.
- Indictment charged conspiracy to commit mail and wire fraud, multiple counts of wire and mail fraud, and money laundering; a superseding indictment added charges later that were dismissed pretrial.
- At trial five wire-fraud counts were dismissed for lack of interstate nexus; jury convicted Mayhew on the remaining 18 counts; district court sentenced him to 320 months (large upward departure/variance from Guidelines range of 108–135 months).
- Mayhew appealed only specific convictions, the willful-blindness jury instruction, sentencing enhancements (role and loss amount), and the substantive and procedural reasonableness of his sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for challenged wire fraud counts | Govt: evidence supports convictions and aiding-and-abetting liability for Mayhew | Mayhew: he was less involved and insufficiently connected to victims for some counts | Affirmed — evidence sufficient; aiding-and-abetting theory supports convictions |
| Sufficiency of evidence for challenged mail fraud counts/interstate nexus | Govt: mail use was reasonably foreseeable from business formalities and Cox’s statements | Mayhew: lacked actual knowledge and mailings were not foreseeable (friends hand-delivered) | Affirmed — foreseeability standard met; mail use reasonably foreseeable |
| Money laundering conviction | Govt: Mayhew aided by providing account information | Mayhew: insufficient participation/knowledge | Affirmed — evidence supports aiding-and-abetting laundering conviction |
| Willful-blindness jury instruction | Govt: instruction proper or harmless | Mayhew: instruction was improper and its wording erroneous; not preserved so plain-error | Any error harmless because ample evidence of actual knowledge; affirmed |
| Sentencing enhancements (leadership role and loss amount) | Govt: enhancement appropriate — organizer/leader of extensive criminal activity and loss > $1.5M | Mayhew: court clearly erred in role and loss findings | Affirmed — district court did not clearly err in role and loss findings |
| Procedural and substantive reasonableness of 320-month sentence | Govt: district court gave notice for departure, explained variance and relied on case facts | Mayhew: variance excessive and Rule 32(h) protections required | Affirmed — court provided sufficient notice for departure, not required to notify for variance; variance not substantively unreasonable |
Key Cases Cited
- United States v. Arrington, 719 F.2d 701 (4th Cir. 1983) (aiding-and-abetting requires participation at some stage with knowledge and intent)
- Pereira v. United States, 347 U.S. 1 (1954) (mail fraud requires that use of mail be reasonably foreseeable)
- United States v. Edwards, 188 F.3d 230 (4th Cir. 1999) (actual knowledge of mailings unnecessary where mail use was foreseeable)
- United States v. Lighty, 616 F.3d 321 (4th Cir. 2010) (harmlessness of willful-blindness instruction where evidence of actual knowledge is ample)
- United States v. Robinson, 627 F.3d 941 (4th Cir. 2010) (plain-error review applies when jury-instruction objections not preserved)
- Irizarry v. United States, 553 U.S. 708 (2008) (Rule 32(h) does not require advance notice for variances post-Booker)
- United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011) (reasonableness review of within- or outside-Guidelines sentences)