UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4020

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID CHRISTOPHER MAYHEW,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:13-cr-00199-F-2)

Argued: September 13, 2017 Decided: November 14, 2017

Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

David Mayhew appeals several convictions and his sentence arising from a Ponzi

scheme he led with another man. Finding no reversible error, we affirm.

Between at least January 2009 and May 2012, Mayhew and Ron McCullough ran

a Ponzi scheme in the Raleigh, North Carolina, area, claiming to be successful investors

in foreign currency exchange (FOREX) groups. The charges in this case involve 19

victims and more than $2 million lost. McCullough is named as a codefendant in the

indictment, but he disappeared before the indictment was issued. Only the charges

against Mayhew are involved in this appeal.

McCullough was the primary public face of the scheme and did most of the

investment solicitation. Mayhew did meet with some of the victims, but he was not as

visible a part of the scheme as McCullough. Nonetheless, all of the victims knew that

McCullough worked with Mayhew, whom McCullough called his “brother” and

described as the main currency trader. The victims in this case are people from the

defendants’ church, people that McCullough randomly befriended, and people that some

of the victims brought into the scam. As to the various transactions in this case, the

defendants followed the same basic modus operandi. They would tell the victims about

their successful FOREX trading, and induce initial investments for small sums with

guaranteed rates of return over a relatively short period. These initial investments were

promptly returned with the promised gains. Thereafter, Mayhew and McCullough would

solicit larger investments with similar assurances of high returns over a quick period.

2 Once these larger investments were made, Mayhew and McCullough would abscond with

the funds.

Mayhew and McCullough were eventually charged with one count of conspiracy

to commit mail and wire fraud; 15 counts of wire fraud; four counts of mail fraud; and

three counts of money laundering. A superseding indictment was issued in July 2014,

charging Mayhew with five additional counts of wire fraud, stemming from additional

fraudulent investments Mayhew solicited while on pretrial release in this case. These

five additional counts were dismissed at the government’s request in April 2015, two

months before trial.

Following the close of the government’s case, Mayhew moved for a judgment of

acquittal as to all counts. The district court dismissed five of the wire fraud charges

because the government failed to present evidence of an interstate nexus; the jury

convicted Mayhew of the remaining 18 charges. The district court sentenced Mayhew to

320 months, which was a significant upward departure and variance from the Guidelines’

range of 108 to 135 months that the district court had calculated.

Mayhew does not challenge the conspiracy conviction on appeal. Instead, he

challenges the sufficiency of the evidence as to some of the substantive mail fraud and

wire fraud counts; argues that the district court should not have given a willful blindness

instruction; contends the court erred in determining his role in the offense and in

calculating the loss amount for sentencing purposes; and argues that the 320-month

sentence is substantively and procedurally unreasonable. None of these arguments

warrants reversal.

3 With regard to the challenged wire fraud convictions, even if McCullough was

more directly involved with the victims of these counts than Mayhew was, the

government at the very least presented sufficient evidence to justify convictions on

aiding-and-abetting theories. See United States v. Arrington,

(4th Cir.

1983) (“To be convicted of aiding and abetting, participation in every stage of an illegal

venture is not required, only participation at some stage accompanied by knowledge of

the result and intent to bring about that result.” (alteration & internal quotation marks

omitted)). As for the challenged mail fraud convictions, the government need only prove

that use of the mail can “reasonably be foreseen, even though not actually intended.”

Pereira v. United States,

(1954). Thus, Mayhew’s actual knowledge as to

whether Travis Cox would mail fraudulent statements to McGrath is irrelevant. See

United States v. Edwards,

(4th Cir. 1999). It is sufficient that Cox’s

testimony that he told Mayhew he needed statements “that [he] could send” made use of

the mail reasonably foreseeable. J.A. 1016 (emphasis added). While Mayhew makes

much of the fact that Cox and McGrath were friends, he ignores the formal nature of the

business transaction entered into between the two men, which included a signed contract

and regular receipt of written account statements. J.A. 726-30. Such business formalities

limit any inference that hand-delivery, not mail, was the foreseeable method of delivering

the fraudulent statements.

And concerning the challenged money laundering conviction, the evidence was at

least sufficient to justify a conclusion that Mayhew aided and abetted McCullough’s

4 money laundering by giving him the number of the account to which the offending

payment was made.

Regarding Mayhew’s challenge to an instruction for willful blindness, any error in

giving the instruction was harmless in light of the ample evidence of Mayhew’s actual

knowledge of the charged financial crimes. See United States v. Lighty,

(4th Cir. 2010) (explaining that if a district court errs by giving a willful blindness

instruction, the error is harmless if “there is sufficient evidence in the record of actual

knowledge on the defendant’s part”). The same is true for Mayhew’s challenge to the

content of the instruction, which because it was not raised below, is reviewed only for

plain error. See United States v. Robinson,

(4th Cir. 2010).

Finally, Mayhew’s challenges to his sentence are without merit. The district court

did not clearly err in enhancing Mayhew’s offense level because Mayhew “was an

organizer or leader of a criminal activity that involved five or more participants or was

otherwise extensive,” U.S.S.G. § 3B1.1(a), and because the amount of the loss caused

was more than $1.5 million but not more than $3.5 million, see U.S.S.G.

§ 2B1.1(b)(1)(I). The district court provided sufficient advance notice of its intention to

depart, and it was not required to provide advance notice of its intention to apply a

variance. See Fed. R. Crim. P. 32(h); see also Irizarry v. United States,

(2008) (“The fact that Rule 32(h) remains in effect [post-Booker] does not justify

extending its protections to variances . . . .”). And the extent of the district court’s

variance, though substantial, was not substantively unreasonable in light of the particular

facts of this case. See United States v. Diosdado-Star,

(4th Cir. 2011)

5 (This court reviews “any sentence, within or outside of the Guidelines range, as a result

of a departure or of a variance . . . for reasonableness pursuant to an abuse of discretion

standard.”).

In sum, we affirm Mayhew’s convictions and sentence.

AFFIRMED

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