USCA4 Appeal: 22-4405 Doc: 90 Filed: 03/18/2024 Pg: 1 of 32

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4405

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE ALEXANDER UNDERWOOD, a/k/a Big A,

Defendant - Appellant.

No. 22-4428

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY RICARDO NEAL, JR.,

Defendant - Appellant.

No. 22-4429

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. USCA4 Appeal: 22-4405 Doc: 90 Filed: 03/18/2024 Pg: 2 of 32

ROBERT ANDREW SPROUSE,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Rock Hill. J. Michelle Childs, District Judge. (0:19-cr-00420-JMC-1; 0:19-cr-00420-JMC-2; 0:19-cr-00420-JMC-3)

Argued: December 6, 2023 Decided: March 18, 2024

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Clarence Rauch Wise, Greenwood, South Carolina, for Appellants. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Elizabeth Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina, for Appellant George Alexander Underwood. Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant Robert Andrew Sprouse. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Appellate Section, Corey R. Amundson, Chief, Public Integrity Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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NIEMEYER, Circuit Judge:

This appeal challenges various aspects of a trial during which an elected county

sheriff and two of his deputies were convicted and sentenced for abuses of power by which

they enriched themselves and bullied others.

George Underwood was elected in 2012 to serve as the Sheriff of Chester County,

South Carolina, which is a small rural county with a population of roughly 32,000 people

in the northern part of the State. Exercising his broad power as Sheriff of a small county,

he enriched himself by directing his deputies to do work, while on the public payroll, to

improve his personal property, including converting and expanding a modest barn into a

home entertainment center. He also enriched himself and others by devising a system with

Lieutenant Johnny Neal to skim money from the extra compensation payable to his

deputies for their work manning drunk-driver automobile checkpoints in the County. In a

similar vein, Sheriff Underwood and Chief Deputy Robert Sprouse used County money to

pay for first-class travel and the travel expenses of their wives when attending a conference

in Reno, Nevada, contrary to existing County procurement rules. Finally, he made

purchases for his office that did not follow the established County procurement procedures.

Sheriff Underwood also abused his authority in the County by targeting enforcement

and harassment against opponents and refusing to investigate offenses reported against

friends and supporters. And on one occasion in particular, he arrested a citizen without

probable cause who was recording on his cellphone a serious accident from which a driver

had fled. Provoked by the citizen’s recording, repeated flippant comments, and slow

compliance with Sheriff Underwood’s direction that he retreat to his porch, Sheriff

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Underwood placed the citizen under arrest without probable cause, alleging that the citizen

had engaged in disorderly conduct and detaining him in jail for three nights.

After the FBI uncovered the corruption, as well as the violation of the citizen’s civil

rights, Chief Deputy Sprouse and Lt. Neal conspired to lie and fabricate documents to cover

up the Sheriff’s Office’s misconduct.

The government charged Sheriff Underwood, Chief Deputy Sprouse, and Lt. Neal

with various violations of federal law in a 17-count indictment, and, after a two-week trial,

the jury convicted them variously on 13 counts.

From the district court’s judgment, the defendants filed these appeals, arguing that,

on some counts, the statutory elements were not proved; that the evidence was insufficient

to support some convictions; and that the district court erred in admitting certain evidence

at trial. They also argue that the district court erred in sentencing and in calculating the

losses for restitution.

After considering each of the defendants’ arguments and carefully reviewing the

record, we affirm.

I

By early 2018, an ongoing FBI investigation into public corruption began to uncover

evidence of official corruption in the Chester County Sheriff’s Office. The evidence

showed that deputy sheriffs in the Office were regularly directed to perform work while on

County time to improve Sheriff Underwood’s personal property, including a barn and a

pond, as well as the properties of other Sheriff’s Office leaders. Most significantly, the

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deputies, as employees of the Sheriff’s Office, were directed to expand and convert

Sheriff’s Underwood’s modest barn into a large entertainment center, with a bar, a bar

sitting area, and a dance floor. The refurbished barn, referred to as his “man cave,” also

had a television, a large beer-storage refrigerator, decorative lighting, and ceiling fans. The

officers were instructed to report during regular work hours to the barn, in old clothes, and

to record their time on timesheets as if they were working on the business of the County.

And the County compensated them accordingly.

Evidence also showed that Sheriff Underwood and Lt. Neal skimmed money from

the extra compensation payable to deputies for their work in manning drunk-driving

checkpoints in the County. The checkpoints were established and funded by a private

entity — the Hazel Pittman Center — with a grant from the federal government. Under

arrangements made by Sheriff Underwood and Lt. Neal, the Hazel Pittman Center agreed

to pay sheriff’s deputies $25 to $30 per hour for manning the checkpoints, which was

compensation paid in addition to the deputies’ compensation as employees in the Sheriff’s

Office. Following the receipt of invoices from the Sheriff’s Office, the Hazel Pittman

Center sent checks for the deputies to the Sheriff’s Office, with the explanation that they

were to pay for each deputy’s work, as agreed. Under Sheriff Underwood’s direction, the

payments were not deposited in the Sheriff’s Office’s normal bank account but were

deposited in the Chester County Detention Center’s bank account, which was designated

to hold money taken from inmates after their arrest until they were released. Lt. Neal’s

wife did the bookkeeping at the Detention Center, and she created dummy inmate

identification numbers for the Hazel Pittman Center checks paid to deputies, labeling them

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as “donations.” Checks were then cut and paid directly to deputies without going through

the County payroll office, where taxes would have been withheld. The evidence showed

that for 11 checkpoints in 2016 and 2017, the deputies who manned the checkpoints did

not receive the full amount listed on the invoices sent to the Hazel Pittman Center. Indeed,

with respect to some checkpoints, the deputies who did the work received no money.

Instead, the deficiencies were paid to Sheriff Underwood, Lt. Neal, and another deputy,

Major Randy Marsh.

Other evidence of public corruption involved Sheriff Underwood and Chief Deputy

Sprouse’s travel to a professional conference in Reno, Nevada, in June 2017. Underwood

submitted a travel request to the County to cover payment for his and Sprouse’s wives and

to cover first-class travel for all. The request, however, “got kicked back” by the County

purchasing department, as the County would not, under established rules, pay for first-class

travel and would not pay spouses’ travel expenses. Sheriff Underwood and Chief Deputy

Sprouse then revised their request to cover travel for Sheriff Underwood, Chief Deputy

Sprouse, Lt. Neal, and Deputy Al Crawford, even though Neal and Crawford never planned

to go to the conference and, in fact, did not go; the wives went as originally planned. The

first-class tickets cost the County over $5,600. When, some two years later, the press

questioned Sheriff Underwood why he and Chief Deputy Sprouse had taken their wives to

the conference and flew first class, only then — two years after the trip — did they write

checks to reimburse the County for their wives’ tickets. They also made up a story to the

reporter to justify their first-class tickets, stating falsely that Sheriff Underwood had “knee

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problems” and that their wives went only when “Neal [and] Crawford . . . were unable to

attend.”

Unrelated to the evidence of financial corruption, the FBI also opened a separate

investigation in late 2018 into civil rights violations committed by Sheriff Underwood and

Lt. Neal, when it received information that the Sheriff’s Office may have arrested an

innocent citizen without probable cause.

The evidence revealed that on November 20, 2018, after a serious automobile

accident occurred and one driver had fled the scene, a private citizen, Kevin Simpson,

exited his mother’s trailer home where he was living at the time and, from his front yard,

began recording the scene with his cellphone. He broadcast the recording on Facebook

Live, accompanied by his own narration, and the recording continued for over 25 minutes.

Early during the recording period, Sheriff Underwood approached Simpson and said, as

was recorded on Simpson’s cellphone, “They got somebody on the loose out here. How

about standing on the porch? I don’t want nothing to happen to you.” Simpson responded,

“Okay, on the loose, alright, I’m straight.” Underwood then added, “Yeah, yeah, I don’t

want nothing to happen to you and your son there.” And Simpson answered, “Alright.”

Simpson, however, continued recording the events, standing the entire time in his front

yard. Toward the end of the recording, Sheriff Underwood approached Simpson, and they

again engaged in dialogue, as follows:

Underwood: “Didn’t I tell you to get on the porch?”

Simpson: “Aint we straight in our yard?”

Underwood: “Answer my question. Didn’t I tell you to get on the porch?”

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Simpson: “Yeah, yeah you did . . . aint we straight in our yard?”

Underwood: “Then get on the porch! Let me, let me say something to you.”

Simpson: “Aint we straight in our yard?”

Underwood: “Let me say something to you. I’m doing a manhunt out here. I got somebody armed and dangerous out here. Get on your porch!”

Simpson: “I aint worried about it man.”

Underwood continued to order Simpson to the porch, and Simpson started retreating to the

porch. Simpson then said, “Let’s stand on the steps,” to which Underwood said, “Get on

the porch!” The exchanges that followed became repetitive, as Simpson said several times,

“Now manhunt” and Underwood said several times, “Move on to the porch.” After

Simpson was on the porch, Underwood instructed him, “Stay on the porch!” Simpson

responded, “Now manhunt! Do your job! I’m on the porch.” After one more similar

exchange, Underwood said, “I’ll tell you what. Step over here. Bring your phone. You’re

going to get hurt. You’re under arrest, put your hands behind your back.” Sheriff

Underwood then grabbed Simpson and the two tussled, falling from the porch into the yard

while Underwood tried to place Simpson in handcuffs. Lt. Neal, who was standing nearby,

then assisted Sheriff Underwood and placed handcuffs on Simpson. Simpson was taken to

jail where he spent three nights, including Thanksgiving Day, before being released.

While engaged in the tussle with Simpson in his effort to arrest him, Sheriff

Underwood apparently dropped or misplaced his police radio. Chief Deputy Sprouse then

directed Major Burley McDaniel, the head of investigations in the Sheriff’s Office, to

obtain a warrant to search the trailer home of Simpson’s mother to recover not only Sheriff

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Underwood’s police radio, but also Simpson’s cellphone. Before the warrant was issued,

however, Simpson’s mother, Ernestine Simpson, allowed officers to enter the trailer where

the officers “started going through” her cellphone that was on the counter in order to call

and find Simpson’s cellphone. The officers found Sheriff Underwood’s police radio in the

grass near the trailer home, and Chief Deputy Sprouse took Ernestine’s cellphone with him,

handing it to a deputy to take it back to the Sheriff’s Office, but he did not log the cellphone

in as evidence. The FBI later recovered the cellphone from the Sheriff’s Office during its

investigation.

It was over a month after Simpson streamed his video on Facebook Live that the

FBI began its investigation, having received a complaint about Simpson’s arrest from

South Carolina’s State Law Enforcement Division. On January 2, 2019, FBI Special Agent

Julie Yelk emailed the Chester County Sheriff’s Office, requesting the incident report for

Simpson’s arrest. The records custodian at the Sheriff’s Office told Special Agent Yelk

that they did not have any such record. Yelk then decided to go to Chester County to

investigate what had happened on the day that Simpson was arrested. The next morning,

she called the Sheriff’s Office and set up interviews with Chief Deputy Sprouse and Lt.

Neal starting at 3:30 that afternoon, January 3. Within an hour of Special Agent Yelk’s

call, Deputy Sprouse and Lt. Neal started preparing an incident report, which they edited

over the next several hours.

During his interview, Lt. Neal gave Special Agent Yelk the report and

acknowledged that he and Chief Deputy Sprouse had just prepared the report that day, over

a month after Simpson’s arrest. As Chief Deputy Sprouse later told Special Agent Yelk,

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“[I]ncident reports are typically completed at the end of [the officer’s] shift,” and “[i]f it’s

late in the evening, they may be completed the next morning.” And Lt. Neal confirmed

that “incident reports are typically done within 24 hours of the incident.”

The report that Chief Deputy Sprouse and Lt. Neal created and presented to Special

Agent Yelk recounted that “Simpson was walking back and fo[rth] from his yard into the

roadway” and that Simpson “was told several times by deputies to stay out of the roadway

and go into his yard.” It recounted that “Simpson was back in the roadway” when “Neal

was escorting the EMS workers to the helicopter with the patient.” The report concluded

that after Sheriff Underwood “told [Simpson] to get back in his yard,” Simpson “began

using profane language and [became] loud and boisterous,” saying “in his own words” “go

look for the fu@#ing person y’all looking for then.” The report indicated that Simpson

was arrested for “disorderly conduct.” It said nothing about the officers’ entry into

Ernestine Simpson’s trailer, nor did it refer to the fact that Chief Deputy Sprouse had taken

Ernestine’s cellphone.

During her interview with Chief Deputy Sprouse, Special Agent Yelk asked about

Ernestine’s cellphone, but Sprouse denied having taken it, saying, “[T]here was no phone

taken from the residence that he was aware of” and “the phone would not have been

evidence, therefore there would have been no need to take the phone.” He added that “[h]e

would have known if the phone was taken.” A week later, Special Agent Yelk again

interviewed Chief Deputy Sprouse, and she again questioned Sprouse about Ernestine’s

cellphone. Sprouse stated again that “the phone had not been taken and that there was no

reason to take Mrs. Simpson’s phone as evidence.”

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Despite Chief Deputy Sprouse’s statements about the cellphone, the FBI shortly

thereafter recovered it from Major McDaniel’s desk in the Sheriff’s Office.

Acting on the information collected by the FBI in its two investigations, the grand

jury indicted Sheriff Underwood, Chief Deputy Sprouse, and Lt. Neal variously in 17

counts, addressing both the financial crimes uncovered and the violation of Simpson’s civil

rights. Following a 9-day trial, the jury returned guilty verdicts on 13 counts. All three

defendants were convicted on Count 1 for conspiracy, and the jury attributed different

objects of the conspiracy to the three for violations of

, 1519, and

666(a)(1)(A). On Count 2, Sheriff Underwood and Lt. Neal were convicted for arresting

Kevin Simpson and detaining him without probable cause, thus depriving him of his civil

rights, in violation of

. On Count 5, Chief Deputy Sprouse and Lt. Neal

were convicted of impeding, obstructing, and influencing a federal investigation with their

false incident report, in violation of

. On Count 8, Chief Deputy Sprouse

was convicted for making false statements to the FBI about the removal of Ernestine’s

cellphone from her home, in violation of

. On Count 9, all three

defendants were convicted for stealing money by misapplying deputies’ services that were

in the care and control of the County, in violation of

(a)(1)(A). And on

Counts 10–17, Sheriff Underwood and Lt. Neal were variously convicted for stealing

money from deputies who had manned the checkpoints in Chester County, in violation of

. Both were convicted on Counts 11–14, and Lt. Neal alone was convicted

on the remaining four, Counts 10, 15–17. As to the remaining four counts in the indictment,

the jury acquitted the defendants named in them.

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Following separate sentencing hearings for each defendant, the district court

sentenced Sheriff Underwood to 46 months’ imprisonment, three years’ supervised release,

and ordered him to pay $29,969.30 in restitution; Chief Deputy Sprouse to 24 months’

imprisonment, three years’ supervised release, and ordered him to pay $24,749.30 in

restitution; and Lt. Neal to 46 months’ imprisonment, three years’ supervised release, and

ordered him to pay $29,969.30 in restitution. The court also ordered that all three

defendants be jointly and severally liable for paying the restitution.

From the district court’s judgments dated July 12, 2022, the defendants filed these

appeals, which we consolidated.

II

All three defendants contend first that the evidence failed to satisfy two elements of

the crime of conviction under Count 9, charging them with federal-program theft, in

violation of

(a)(1)(A). Section 666 punishes any agent of a state or local

governmental entity who steals $5,000 or more from that entity if it has received more than

$10,000 in federal benefits in any one year. The defendants maintain that they did not

violate § 666 because (1) they were not “agents” of Chester County, as charged, and

(2) Chester County had not received more than $10,000 in federal benefits in the preceding

year.

In maintaining that they were not “agents” of Chester County, the defendants argue

that they were, as a matter of law, employees of the State of South Carolina, not Chester

County. They note that the office of the sheriff was created by Article V, Section 24 of the

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South Carolina Constitution, and argue accordingly that sheriffs’ offices are totally

independent of county government. Therefore, they assert, sheriff’s deputies are

answerable only to the sheriff and not to any county government, citing Allen v. Fidelity &

Deposit Co. of Maryland,

(D.S.C. 1981). Moreover, they cite

South Carolina court decisions that have held that sheriffs are employees of the State for

various purposes. See Heath v. County of Aiken,

(S.C. 1988) (agreeing

that sheriffs’ deputies were not “county ‘employees’ for purposes of Section 4-9-30(7)’s

personnel policies and grievance procedure”); Botchie v. O’Dowd,

(S.C. 1989) (stating that “the legislature did not intend for deputies to be included within

the term ‘employees’” of a county for certain purposes); Edwards v. Lexington Cnty.

Sheriff’s Dep’t,

, 127 n.1 (S.C. 2010) (noting that “under South Carolina

law, the sheriff and sheriffs’ deputies are State, not county, employees”).

While the defendants fairly show that a sheriff and his deputies are, for various

purposes, employees of the State, not any given county, that gets them only so far in this

case because the definition of “agent” in

is broader than “employee.” A

person who is an employee of one entity may nonetheless also be an agent of another.

Section 666 defines “agent” as “a person authorized to act on behalf of another person or

a government.”

(d)(1) (emphasis added); see also United States v. Pinson,

(4th Cir. 2017) (per curiam) (noting that an agent under § 666 has been

interpreted to include “any person with authorization to act on behalf of the covered entity

in some capacity, regardless of the person’s official title” (emphasis added)). And whether

a person is an agent turns on “[t]he evidence presented at trial” of the person’s relationship

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to the covered government entity and the person’s authority to act on its behalf. Pinson,

.

At trial, the government presented evidence that the Sheriff’s Office, with prior

approval, was authorized to obligate County funds to purchase items, like trucks and body-

worn cameras, for use by the Sheriff’s Office. Indeed, when Sheriff Underwood

occasionally obligated funds without authorization, the County Treasurer had to intervene.

There was also evidence that Sheriff Underwood was authorized to incur travel expenses

from the County under the County’s rules. These are examples of the evidence that the

jury had before it relating to the authority that Sheriff Underwood and his deputies had,

providing evidence that they were “agents” of the County for purposes of § 666. It was for

the jury, of course, to make that factual determination, which they did when finding the

defendants guilty of violating § 666.

As to § 666’s requirement that the County have received $10,000 in federal benefits,

the defendants argue that “the government offered insufficient proof.” Again, however,

this overlooks the evidence before the jury. The Chester County Treasurer testified that

during 2017, the County received “about $370,000 in federal grant money,” which the

County spent on body cameras, 911 equipment upgrades, and a backup generator for the

fire department. While the defendants dismiss this evidence, arguing that the grant money

was merely a reimbursement for ordinary expenses and thus not a benefit under the statute,

see Fischer v. United States,

(2000); Pinson,

, the

evidence showed that the $370,000 was a grant enabling the County to purchase items

needed for improvements in law enforcement and fire protection. The evidence showed

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that after Chester County received the grant money, it spent it on body cameras, upgrades

to the 911 system, and a backup generator, all of which functioned to improve the County’s

services to the people and achieve policy goals. See Fischer,

(defining

“benefits” as payments for something more than “ordinary course expenditures” that “are

made for significant and substantial reasons in addition to compensation or

reimbursement”). We conclude that this evidence was sufficient to satisfy the $10,000-

benefits element of § 666.

Therefore, we reject the defendants’ challenges to their convictions under Count 9

of the indictment.

III

Next, Sheriff Underwood and Lt. Neal challenge the sufficiency of the evidence to

support their convictions for depriving Simpson of his civil rights in violation of

by arresting him without probable cause. That section provides, “Whoever, under

color of any law, . . . willfully subjects any person . . . to the deprivation of any rights . . .

secured or protected by the Constitution or laws of the United States” shall be punished.

. Thus, to prove a violation, the government must show that “the defendant

(1) willfully (2) deprived another individual of a constitutional right (3) while acting under

color of law.” United States v. Cowden,

(4th Cir. 2018).

The defendants contend that they did not deprive Simpson of his constitutional

rights because they had probable cause to arrest Simpson either for disorderly conduct or

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obstruction of justice. The evidence before the jury, however, was sufficient for it to

conclude otherwise.

The primary evidence presented to the jury was the video that Simpson made of the

events leading up to his arrest. But there was also the testimony of Fire Chief Frank Culp,

who witnessed the events and testified that he did not see Simpson “interfering with the

scene,” and the testimony of Simpson himself. To the extent that the defendants point to

this evidence and characterize it differently, the jury was authorized to make the ultimate

factual finding. And we can overturn the jury’s verdict only if no reasonable juror could

have found the defendants guilty beyond a reasonable doubt. See United States v. Dennis,

(4th Cir. 2021).

Simpson’s recording, which included both video and audio, showed that Simpson

was standing in his yard the entire time that he was recording the events surrounding the

automobile accident. While the recording showed a fence at the front of his yard, the grass

of his yard nonetheless extended beyond the fence to the curb of the street. Simpson

occasionally moved beyond the fence, but he never stepped off or beyond the curb into the

street.

Moreover, during the course of the 25-minute video, ending with Simpson’s arrest,

Simpson did not physically interact with anyone else. Simpson was simply holding his

cellphone the entire time, recording the events, narrating them, and occasionally speaking

with others, including Sheriff Underwood. As for his dialogue with Sheriff Underwood,

the video showed Underwood repeatedly telling Simpson, for his safety, to get on the porch

of his house, several yards behind where Simpson was standing. Sheriff Underwood made

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no statement, however, suggesting that Simpson was interfering with, obstructing, or

otherwise adversely affecting the ongoing law enforcement work. Simpson responded

repeatedly to Sheriff Underwood’s statements by indicating that he felt safe in his yard.

Finally, Sheriff Underwood explained to Simpson that he should get on the porch because

Underwood was “doing a manhunt out here,” and Simpson complied, albeit slowly. But

as Sheriff Underwood continued his commands to Simpson to get on the porch, Simpson

started responding repeatedly, “Now manhunt.” It was when Simpson told Sheriff

Underwood, “Do your job! I’m on the porch,” that Sheriff Underwood, apparently now

upset by this indignity, moved to Simpson, grabbed him, and told him he was under arrest.

At that point, scuffling is heard on the video, as Sheriff Underwood attempted to arrest

Simpson, and the video ended. During the scuffling, Lt. Neal placed handcuffs on

Simpson, as testified to by Fire Chief Culp.

The jury could well have construed the evidence to show that Simpson was not

arrested because he acted disorderly or obstructed or interfered with law enforcement work.

The jury could instead have concluded that Simpson’s flippant repetition of “now

manhunt” annoyed Sheriff Underwood and caused him to place Simpson under arrest

without probable cause that he had committed or was committing a crime.

Lt. Neal argues additionally that the evidence did not show that he acted with the

requisite willfulness in violating Simpson’s rights because, as he contends, he was only

following Sheriff Underwood’s order to place Simpson in handcuffs. He asserts that his

good-faith reliance on the reasonable commands of a superior officer deprived the

government of proof that his conduct was willful, as necessary for conviction under

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. He argues that in instances where such reliance is both in good faith and

reasonable, the officer is not aware that what he has done violates any constitutional

command because he has reasonably relied on the characterization provided by his

superior, citing Bilida v. McCleod,

(1st Cir. 2000).

Lt. Neal’s involvement, however, was not as benign as he suggests. First, he was at

the scene witnessing the exchange between Simpson and Sheriff Underwood and

Underwood’s attempt to arrest Simpson. In addition, there was evidence that he virtually

became an equal partner with Sheriff Underwood in effecting the arrest and removing

Simpson from his house and yard.

Fire Chief Frank Culp testified that he witnessed the relevant events, first from the

street and then, after Sheriff Underwood and Simpson began to tussle, from a much closer

distance, as he entered Simpson’s yard to watch. He explained that, after Sheriff

Underwood and Simpson started fighting and Underwood “couldn’t get the handcuffs on

him, . . . Johnny Neal came over and he helped the Sheriff get the handcuffs on him.”

Moreover, after Sheriff Underwood and Simpson got back to their feet, Simpson started

“raising Cain” about being arrested, using profanity, and “fussing.” According to Fire

Chief Culp, at that point, Lt. Neal

walked up to [Simpson] and just pushed him as hard as he could, and it pushed him so hard the guy’s feet flew up in the air, and when he hit the ground, it sound[ed] like somebody throwing a sack of taters on the ground.

I just knew he done hurt the boy, and so I was kind of waiting to see, you know, if he needed help. He laid on the ground for at least a minute, maybe two minutes, and then [Sheriff Underwood and Lt. Neal] went over there and helped him back up. And then after they helped him up, he didn’t fuss or

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cuss or complain or anything anymore. And then after that, they led him up to, I reckon, a police car.

This evidence does not suggest that Lt. Neal was merely passively following orders; it

provides evidence that he was a willful and volunteering participant in the process of

getting Simpson away from the scene because he was acting obnoxiously. But that was

not probable cause to arrest him. A jury could have concluded that this evidence

contradicted Lt. Neal’s lack-of-willfulness claim, and the jury did just that.

We conclude that the jury had sufficient evidence with which to convict both Sheriff

Underwood and Lt. Neal on Count 2, and we reject their arguments suggesting otherwise.

IV

Next, Chief Deputy Sprouse and Lt. Neal challenge the sufficiency of the evidence

offered to support their convictions under Count 5 for impeding a federal investigation

under

. Section 1519 provides, “Whoever knowingly . . . conceals, covers

up, falsifies, or makes a false entry in any record . . . with the intent to impede, obstruct, or

influence the investigation” of an agency of the United States shall be punished.

. The government charged that the incident report of Simpson’s arrest, written by

Chief Deputy Sprouse and Lt. Neal, contained two falsehoods and one omission, which,

when given to the FBI pursuant to Special Agent Yelk’s request, were intended to impede,

obstruct, or influence its investigation. The indictment alleged that the defendants’ report

(1) falsely stated that Simpson was walking in the road; (2) falsely stated that Simpson

used profanities with Underwood prior to his arrest; and (3) omitted the fact that Chief

Deputy Sprouse took Ernestine Simpson’s cellphone during the search of her house. The

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evidence showed that Lt. Neal wrote the first part of the incident report describing

Simpson’s arrest and Chief Deputy Sprouse wrote the portion relating to the seizure of the

cellphone.

Lt. Neal argues that his portion of the report describing Simpson’s arrest was not

false. The report’s statement that Simpson went into the road, he argues, was correct

because the video clearly showed that Simpson left his yard and went beyond the fence.

And as to the report’s statement that Simpson used profanity, Lt. Neal suggests that

Simpson’s use of “taunts” — repeatedly calling out “now manhunt” — equated to

profanity.

While the parties devote substantial attention to whether the strip of land between

the fence on Simpson’s property and the road was indeed part of the road, this was a factual

dispute. The video clearly showed that grass in Simpson’s yard extended beyond the fence

to the curb of the road and that Simpson never crossed or stepped off of the curb into the

road. Also, Fire Chief Culp testified that while he was at the scene, he never saw Simpson

enter the road. The jury, which saw the video and heard this evidence, certainly was

entitled to resolve this factual dispute against Lt. Neal.

And as to Lt. Neal’s argument that Simpson used profanity, Lt. Neal suggests that

Simpson’s repeated statement, “Now manhunt,” was sufficiently taunting for him to call it

profanity. As a consequence, he wrote in the report that Simpson “began using profane

language and [became] loud and boisterous” and stated “go look for the fu@#ing person

y’all looking for then.” Lt. Neal’s argument that “now manhunt” amounts to profanity was

surely for the jury to decide, and it is doubtful that reasonable jurors could conclude that

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the statement amounted to profanity. Moreover, nowhere in the video is there language

even close to what Neal quoted in the report.

As to the report’s omission of the seizure of Ernestine Simpson’s cellphone, Chief

Deputy Sprouse argues that it was immaterial and therefore insufficient to find him guilty

under

. The events surrounding the cellphone seizure, however, suggest

otherwise. After Chief Deputy Sprouse removed the cellphone from the scene, he gave it

to another deputy to take to the Sheriff’s Office, but it was never tagged or logged in. And

when Special Agent Yelk made repeated efforts to obtain information about the cellphone,

demonstrating that it was at least material to her, Chief Deputy Sprouse continued to lie.

These events support that the omission of the cellphone seizure from the report was a

deliberate attempt to conceal improper police conduct, which was sufficient to support a

finding of materiality. Cf. United States v. Lanham,

(6th Cir. 2010)

(“Material omissions of fact can be interpreted as an attempt to ‘cover up’ or ‘conceal’

information”).

Finally, Lt. Neal devotes substantial additional argument to his claim that he did not

have the mens rea necessary to find him guilty of “knowingly” including falsities in his

report about Simpson’s arrest. His argument again relies on his claim that in both arresting

Simpson and writing the report, he relied on Sheriff Underwood’s characterization of the

events. There was ample evidence, however, for the jury to have rejected that argument.

As noted, there was testimony at trial from Fire Chief Culp that he saw both Lt. Neal and

Sheriff Underwood during the entire arrest sequence with Simpson and that Lt. Neal

actively participated in the arrest. Moreover, evidence was presented at trial that as early

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as the night of Simpson’s arrest, members of the Chester County Sheriff’s Office viewed

the video of the arrest, which clearly showed that Simpson used no profanity with Sheriff

Underwood before his arrest. Finally, the timing of the incident report’s creation — almost

two months late and only after the FBI requested it —also supports the jury’s inference as

to Lt. Neal’s mens rea. See, e.g., United States v. Hunt,

(11th Cir. 2008)

(noting that evidence that an officer was “aware he may have engaged in wrongful

behavior” at the time he made a misstatement “provid[ed] circumstantial support for the

jury’s determination on the intent element”).

In short, we conclude that the evidence was sufficient for the jury to have concluded

that both Chief Deputy Sprouse and Lt. Neal knowingly impeded the investigation of the

FBI by their false statements and material omission.

V

Sheriff Underwood and Lt. Neal also challenge their convictions for wire fraud

under

, which were based on their skimming money from the

compensation of the deputies who worked at the drunk-driving checkpoints sponsored by

the Hazel Pittman Center. While they do not dispute that they defrauded some people, they

argue that the indictment required the government to prove that they defrauded the Hazel

Pittman Center in particular, which, they argue, the government failed to do. They claim

that “[t]he government’s premise of the fraudulent scheme was that Neal and Underwood

defrauded the Center of money,” but they provide no citation for that assertion. Moreover,

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the argument disregards the plain language of the indictment and fails to account for the

evidence offered to support the charge.

The indictment against Sheriff Underwood and Lt. Neal charged a broad scheme,

alleging that the defendants devised “a scheme to defraud Hazel Pittman, Chester County

Sheriff’s Office employees, and others, to obtain money and property by means of

materially false and fraudulent pretenses, representations, and promises.” (Emphasis

added). And at trial, the government presented evidence showing how the defendants

invoiced the Hazel Pittman Center for payment to the deputies manning the checkpoints

and arranged to have the Hazel Pittman Center checks deposited in a Detention Center bank

account. The evidence also showed how Sheriff Underwood and Lt. Neal manipulated and

disguised withdrawals from that bank account, which allowed them to make incomplete or

no payments to deputies, ultimately depriving the “Chester County Sheriff’s Office

employees” of the monies that they earned, as charged. There is simply no merit to the

defendants’ argument that the scheme alleged in the indictment was focused only on

defrauding the Hazel Pittman Center. While the Center was the source of the monies stolen

and its purpose was frustrated by the theft, the government both alleged and proved that

the actual theft occurred further downstream such that the deputies did not receive what

they earned.

Lt. Neal argues additionally that there was insufficient evidence to support the claim

that he deposited any of the fraudulent checks at issue in the bank and that there was

therefore an insufficient nexus between his conduct and the use of “wires,” as necessary to

support a wire fraud conviction under § 1343. Again, however, he overlooks the evidence

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at trial. The invoices sent to the Hazel Pittman Center requested that the Center’s payments

be sent with the notation, “Attention: Lieutenant Johnny Neal.” The checks were either

so mailed, addressed to Lt. Neal, or he picked them up from the Hazel Pittman Center

office. But either way, the checks were then deposited in the bank account that the

defendants used in this scheme. Accordingly, we also reject this argument.

VI

Relying on the arguments that they made with respect to the substantive convictions,

all three defendants challenge their conspiracy convictions, arguing that if we overturn the

substantive convictions, we must also overturn the conspiracy convictions based on them.

Because we affirm the convictions of the substantive crimes, we likewise uphold

the conspiracy convictions.

VII

For their final challenge to their convictions, the defendants contend that the district

court abused its discretion in admitting certain prior-acts evidence during trial. They

challenge the district court’s rulings admitting, as intrinsic to the conspiracy charged,

evidence showing that Sheriff Underwood (1) directed officers to surveil “breakfast club”

meetings of local prominent people in Chester County after a dispute between Underwood

and some members of the club regarding the use in schools of resource officers who were

not deputy sheriffs; (2) selectively ordered the arrest of the prior sheriff’s brother-in-law

on drunk-driving charges; (3) ordered deputies to stop a state senator for traffic violations

because the senator was involved in suspending Sheriff Underwood’s spouse from her

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position as a state magistrate judge; and (4) directed a deputy to drop drug charges against

the son of one of Sheriff Underwood’s political supporters after the supporter met with

Underwood. They also challenge the court’s rulings admitting, for the purpose of showing

knowledge and intent — namely, “Underwood’s knowledge of the County’s procurement

policies and intent to violate them” as relevant to the federal-program theft charge —

evidence showing (1) that Sheriff Underwood and Chief Deputy Sprouse had flown first

class with their spouses to Reno on a work trip on the County’s dime, although the County

policy prohibited first-class travel and reimbursement of spouses’ expenses, and (2) that

the Sheriff’s Office had acquired items without following Chester County’s procurement

policies. The defendants argue that the district court’s rulings were abuses of discretion,

as the court admitted evidence that was neither intrinsic to the conspiracy nor relevant to

knowledge and intent. Therefore, they argue, the admission of this evidence violated the

restrictions provided by Federal Rule of Evidence 404(b) (regulating the admission of

evidence of other crimes, wrongs, or acts). We review these evidentiary rulings for abuse

of discretion.

It is, of course, foundational that district courts may admit “relevant evidence”

except as otherwise provided by law. See Fed. R. Evid. 402. And relevant evidence is that

evidence which has “any tendency to make a fact more or less probable” when the fact “is

of consequence in determining the action.” Fed. R. Evid. 401. Rule 404(b), which is at

issue here, provides that “[e]vidence of any other crime, wrong, or act is not admissible to

prove a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” Fed. R. Evid. 404(b)(1) (emphasis added). But the rule

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goes on to provide that such evidence is admissible for other purposes, “such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2).

While Rule 404(b) regulates prior-acts evidence extrinsic to the acts charged in the

indictment, it does not regulate acts intrinsic to the conduct charged. See United States v.

Bush,

(4th Cir. 2019) (noting that “the provisions of Rule 404(b) are

only applicable when the challenged evidence is extrinsic, that is, ‘separate’ from or

‘unrelated’ to the charged offense”); United States v. Chin,

(4th Cir. 1996)

(“The majority of circuits have held that Rule 404(b) applies only to limits on the admission

of other acts extrinsic to the one charged. Under that rule, acts intrinsic to the alleged crime

do not fall under Rule 404(b)’s limitations on admissible evidence”). And we have held

that intrinsic acts include, among other things, those that are involved in the “same series

of transactions as the charged offense, or [that are] necessary to complete the story of the

crime on trial.” United States v. Webb,

(4th Cir. 2020) (cleaned up).

Moreover, in conspiracy cases, we have noted that this means that “the government is

permitted to present evidence of acts committed in furtherance of the conspiracy even

though they are not all specifically described in the indictment.” United States v. Janati,

(4th Cir. 2004). Indeed, an indictment is not intended to be a summary

of all the evidence that the government intends to offer at trial.

For most of the evidence that the defendants challenge, the district court admitted it

as intrinsic to the conduct charged. And based on the scope of charges made in the

indictment, we conclude that the district court did not abuse its discretion in that regard.

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Count 1 of the indictment charged a broad conspiracy of public corruption involving

financial corruption, abuse of financial procurements, and abuse of others’ rights. It

alleged that the object of the conspiracy was the defendants’ use of “their positions in the

Chester County Sheriff’s Office to [1] enrich themselves by obtaining and retaining money

and property to which they were not entitled, [2] cover up their misconduct, and [3] obstruct

investigations into their misconduct.” And describing how the conspiracy was carried out,

the indictment alleged, among other things, that the defendants used “their positions as law

enforcement officers to intimidate others”; that they took “family members on trips and

charg[ed] the cost to the Sheriff’s Office”; that they “[e]stablish[ed] a climate of fear within

the Sheriff’s Office to direct and secure obedience among subordinates”; and that they

“[a]buse[d] the rights of others, including [Kevin Simpson].” These allegations readily

cover the evidence that the district court admitted as intrinsic to the charges and therefore

such evidence was not regulated by Rule 404(b).

The district court admitted the remaining evidence as appropriate prior-act evidence

under Rule 404(b)(2), which allows prior-act evidence to show knowledge and intent, in

this case, as relevant to the federal-program theft charges. The evidence showed that by

deliberately skirting financial controls and rules, the defendants funded a trip and

purchased unapproved items for the Sheriff’s Office. And it also tended to show that the

defendants had the requisite knowledge and intent when they engaged in federal-program

theft by “without authority knowingly convert[ing]” deputies’ time, and thereby County

funds, to their personal benefit in contravention of County policy.

(a)(1)(A).

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In light of the conspiracy and federal-program theft counts, we conclude that the

district court did not abuse its discretion in admitting the challenged evidence, either as

intrinsic to the charges or for knowledge and intent.

VIII

As to the calculation of restitution for the losses sustained, all three defendants

contend that the district court relied on insufficiently reliable information and that its

calculation of restitution was therefore unreasonable.

As required by the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, the

district court ordered each defendant, jointly and severally, to make restitution in the

amount of $24,749.30 to the County for the loss associated with the time deputies were

required to work on Sheriff Underwood’s property while being paid by the County. The

court also ordered that Sheriff Underwood and Lt. Neal make additional restitution in the

amount of $5,220 representing the amount stolen from deputies who manned the drunk-

driver checkpoints. The defendants do not challenge the restitution amount of $5,220, but

they do contend that the calculation of the loss to the County associated with the work

performed on Sheriff Underwood’s property was unreasonable.

The district court accepted a calculation provided by the government through a

detailed chart reflecting the trial testimony of six employees of the Sheriff’s Office

regarding the work they did at Sheriff Underwood’s property, particularly on his barn. The

chart showed the employees’ hourly rate of income, the estimated hours each employee

worked at Sheriff Underwood’s property, and the resulting total compensation the County

paid them for that time. With respect to salaried employees, the hourly rate was calculated

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by dividing the employees’ weekly salary by 40 to find the per-hour amount. Then to

determine the loss attributable to 10 nontestifying employees who were specifically named

by testifying employees as having worked on the property, the court relied on the average

loss associated with the six testifying employees. Through this method, the court

calculated the compensation the County paid for the work of the employees — the six

testifying employees and the 10 nontestifying employees — and arrived at the total of

$24,749.30, which it required that the defendants pay as restitution.

The defendants contend that the court’s calculations are unreasonable, arguing

(1) that the total loss to the County associated with the work performed should be reduced

for the time that the employees worked on their own time, as opposed to on County time;

(2) that for the 10 nontestifying employees, the court should have used the median of the

losses associated with the testifying employees, not the average; and (3) that the salaried

employees’ hourly rate should have been computed by dividing their salary by 168 hours,

rather than 40 hours, because they were on duty 24/7. Beyond making these objections,

however, the defendants do not offer a distinct methodology to calculate the loss.

We conclude that the defendants’ objections amount to nitpicking from available

alternative methods of calculation that are reasonable. Whether the employees were on

County time or on their own time when working on the barn was a matter that the jury

decided decisively against the defendants in finding them guilty in the first place.

Furthermore, the government made allowance for officers who testified that they were

performing work on their own time by not including that work in the calculation. And as

to the 10 nontestifying employees, while the court chose to use the average of the loss

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associated with the testifying employees, rather than the median, the defendants have failed

to show why the average was unreasonable. Finally, while the salaried employees may

have been on call 24/7 or 168 hours per week — which are all of the hours in a week —

the defendants did not suggest that those employees actually worked 168 hours. They

provided no data as to how many hours each did work and why 40 hours was not a

reasonable estimate.

It is well established that district courts have “discretion to determine the proper

method of calculating the value of lost property,” United States v. Steele,

(4th Cir. 2018), and that the Mandatory Victims Restitution Act “does not require

absolute precision so long as there is a basis for reasonable approximation,” United States

v. Manlapaz,

, 118 (4th Cir. 2020) (per curiam). Moreover,

“extrapolation is an acceptable method to use in making a reasonable estimate of loss.”

United States v. Johnson,

(4th Cir. 2010) (making that observation

for a calculation under the Sentencing Guidelines).

We are satisfied that the district court’s calculation amounted to a reasonable

estimate. Moreover, “once the Government ha[d] satisfied its burden to offer evidence

supporting its restitution calculation, the burden shift[ed] to the defendant[s] to dispute the

amount with [their] own evidence,” which the defendants in this case did not do. United

States v. Stone,

(4th Cir. 2017). Accordingly, we affirm the district

court’s restitution orders.

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IX

Finally, as to sentencing, Sheriff Underwood contends that the district court, in

determining his sentence, erred by relying on acquitted or noncharged conduct.

Particularly, he points to statements made by the court during sentencing suggesting that

the court was relying on obstruction of justice and false statements convictions, whereas

he was actually acquitted on those counts. In particular, he directs our attention to the

district court’s comment during sentencing where the court stated:

[A]fter Mr. Simpson’s arrest on November 20, 2018, based on evidence presented to the jury, Mr. Underwood and his codefendants attempted to conceal the unlawful deprivation of Mr. Simpson’s constitutionally protected rights by preparing false incident reports, concealing evidence of the crime, and making false statements to the FBI. At all times during this conspiracy and the unlawful arrest of Mr. Simpson, Mr. Underwood was the duly elected sheriff of Chester County.

(Emphasis added). And he further notes that the district court stated, “It’s atypical that a

public official would be convicted of deprivation of civil rights, federal program theft, and

providing a false statement to the FBI at the same time.” (Emphasis added).

While Sheriff Underwood does not contend that the district court’s referral to false

incident reports, concealing evidence, and making false statements to the FBI gave rise to

any improper calculation under the Sentencing Guidelines, he argues that this erroneous

reference reflected a misunderstanding of the conduct for which he was found guilty, likely

influencing the court’s refusal to give him a downward variance sentence, as he requested.

We are confident, however, that any error in this regard did not affect Sheriff

Underwood’s “substantial rights.” Fed. R. Crim. P. 52(a). The district court used loose

language in articulating the sentence, but a review of the sentencing transcript as a whole

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demonstrates that it did not base its sentencing decision on acquitted conduct. Immediately

before sentencing Underwood, the district court noted as an explanation for the sentence

that “you also have a person who is in a high position of trust and has a high-level status

. . . and so this case is about the abuse of that particular trust.” And the court further

observed that it also gave Underwood credit for his acquittal on obstruction of justice

stating, “They did not convict on one of the counts, which I believe was the obstruction,

and for that reason I sustained the objection to an obstruction count and Mr. Underwood

benefited from that because his Guidelines actually became less.” Accordingly, we are

convinced the district court did not improperly rely on acquitted conduct in determining

Sheriff Underwood’s sentence, and any error in its brief reference to such conduct was

harmless.

* * *

For the foregoing reasons, we affirm the judgments of the district court with respect

to all three defendants.

AFFIRMED

32