United States v. Mark Carpenter, 676 F. App'x 397

Carpenter, a certified financial planner, solicited investors for an Arizona gold‑mine venture beginning mid‑2008 and received about $2 million that he wired to GetMoni.com, earning ~5% commission; only ~20% funded mine development.
After October 2008 Carpenter retained subsequent investor funds (~$1 million) in his own accounts, used money to pay earlier investors and for personal expenses, and made false assurances to investors that funds were safe.
Brito and Moore ran the underlying Ponzi‑style fraud; they and other alleged co‑conspirators pled guilty. Carpenter was indicted, tried, and convicted of 36 counts of wire fraud and one count of mail fraud.
Post‑trial, Carpenter’s counsel withdrew; the court appointed Jerome Sabbota (who had previously represented co‑conspirator Moore in earlier proceedings) to represent Carpenter at sentencing. Carpenter was sentenced to 125 months and ordered to pay about $3 million restitution.
Carpenter appealed, challenging (1) sufficiency of the evidence, (2) trial counsel effectiveness, and (3) sentencing/resentencing issues including alleged conflict and ineffective assistance at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for fraud convictions	Carpenter: evidence only shows poor advising and bad investments, not intent to defraud	Government: circumstantial evidence (false statements, omissions, ludicrous promised returns, concealment of commissions, continued solicitation after red flags) shows intent	Affirmed — evidence sufficient for both schemes under Jackson standard
Post‑trial ineffective assistance of counsel claim	Carpenter: trial counsel was constitutionally ineffective, warranting new trial	Government: claim raised first on direct appeal; record inadequate to assess strategy	Not addressed on appeal; should be raised in §2255 proceeding (Massaro)
Rule 44(c) conflict hearing before appointing Sabbota	Carpenter: court should have held inquiry into conflict because Sabbota previously represented co‑conspirator Moore	Government: prior representation was successive (different proceeding ended >1 year earlier), not joint, so Rule 44(c) not triggered	Held: No Rule 44(c) hearing required because representation was successive, not joint
Ineffective assistance at sentencing by Sabbota	Carpenter: Sabbota failed to contrast culpability with Moore and omitted key motions/arguments	Government: inadequate record to adjudicate on direct appeal	Not addressed on appeal; remediable via §2255 petition

Jackson v. Virginia, 443 U.S. 307 (standards for reviewing sufficiency of the evidence)
United States v. Faulkenberry, 614 F.3d 573 (elements of wire/mail fraud)
United States v. Humphrey, 279 F.3d 372 (circumstantial evidence can support conviction)
United States v. Davis, 490 F.3d 541 (circumstantial evidence standard in fraud cases)
United States v. Daniel, 329 F.3d 480 (fraudulent intent includes short‑term deprivation and risking investors’ funds)
United States v. Hughes, 505 F.3d 578 (standard rejecting weight‑of‑evidence new‑trial claims)
United States v. Munoz, 605 F.3d 359 (ineffective assistance standards on appeal)
United States v. Ferguson, 669 F.3d 756 (procedural bar to raising ineffective assistance on direct appeal without adequate record)
Massaro v. United States, 538 U.S. 500 (ineffective assistance claims properly raised in §2255 proceedings)
Moss v. United States, 323 F.3d 445 (distinguishing joint vs. successive representation for Rule 44(c) inquiry)