                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4493



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILLIAM LUTHER STEWART, a/k/a Luke Stewart,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (CR-03-1088-CMC)


Submitted:   May 16, 2006                  Decided:   June 16, 2006


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James M. Griffin, Columbia, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     William    Luther      Stewart    was    convicted   of   wire   fraud,   in

violation of 18 U.S.C. §§ 1343 and 2, and the district court

sentenced him to 30 months’ imprisonment.

     The indictment charged that through a scheme and artifice to

defraud, Stewart, together with his colleague, Edwin G. Blair, and

their company, Media Fusion, LLC, obtained a loan of $1 million

from SCANA Corporation, a company that owns South Carolina Electric

and Gas, to fund implementation of a new technology that Stewart

had allegedly developed.        In particular, Stewart was charged with

misrepresenting the fact that he had successfully developed a

technology by which to transmit voice, video, and data over the

power   grid,   and,   to    make     his    representations   credible,   with

misrepresenting his credentials and his relationships with other

major technology companies and institutions, such as MIT, NASA, the

Defense Advanced Research Projects Agency, Microsoft, and San Diego

Gas and Electric.      The indictment also charged that in furtherance

of the scheme, Stewart and Blair sent a fax from Texas to SCANA in

South Carolina, which contained projected monthly milestones and a

budget for implementation of the technology.

     The jury found Stewart guilty of the charge, and the district

court entered a judgment of conviction and the 30-month sentence on

May 6, 2005.




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       On    appeal,     Stewart       contends      (1)    that    the   evidence    was

insufficient to support the verdict; (2) that the district court

abused its discretion in admitting letters from NASA and a U.S.

Attorney in Mississippi, confirming, after the loan had already

been    made      to   Stewart,    the       inaccuracy      of    some   of   Stewart’s

misrepresentations; and (3) that the district court erred in

sentencing by applying a $1 million-loss figure when Stewart was

acquitted of the specific count charging that his scheme caused the

transmission of $1 million from South Carolina to Texas.

       For the reasons that follow, we affirm.



                                              I

       Stewart contends first that the government failed to present

evidence sufficient to convict him, arguing that there was no

evidence that he created or directed the sending of the fax, that

he     participated       in     the     misrepresentations,          and      that   the

misrepresentations were false.

       Taking      the   evidence       in    a    light    most   favorable     to   the

government, however, we believe that there was substantial evidence

to support Stewart’s conviction.                  Even though the fax was sent by

Blair,      the   jury   could     reasonably        have    believed     that   Stewart

directed Blair to send the fax or that he assisted Blair in doing

so.    Stewart and Blair were the two principals of Media Fusion and

were constant companions in obtaining the loan from SCANA. The fax


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furthered the scheme to defraud SCANA because SCANA officials

requested the financial information contained in the fax before

they made their loan and testified that they would not have loaned

Media Fusion the $1 million if they had known that the technology

was not ready for immediate installation.   The fax implied that it

was developed and ready for installation because the fax minimized

future costs for research and development and forecasted revenue-

producing consumer use within 12 months of the loan.   In addition,

the jury could reasonably have agreed with SCANA officials who

testified that Stewart constantly led them to believe that the

technology was more fully developed than it actually was.      The

officials stated that Stewart had told them that the technology was

“proven technology” capable of near-term commercialization.    The

evidence showed that in actuality, however, Stewart had never

tested the technology on a power line to prove it could pass

digital signals through transformers.    Even if the jury believed

Stewart that he had done some testing, he testified that he had

only tested some individual components of the technology, and not

the technology as a whole.   In light of the testimony that SCANA

officials told Stewart they only were interested in ready-to-market

technology, the jury could have inferred an intent to defraud from

Stewart’s repeated misrepresentations.      From our review of the

record, we conclude that the jury had ample evidence on which to

convict Stewart on the § 1343 charge.


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                                        II

     Stewart also contends that the district court abused its

discretion in admitting into evidence a 1999 letter from NASA and

a 2000 letter from the Department of Justice because the letters

were dated after SCANA had made the $1 million loan to Media

Fusion.       The    government,    however,      offered     the   letters    to

demonstrate     that     part      of    the     scheme     included    Blair’s

misrepresentations about Media Fusion’s relationship with NASA made

to forestall SCANA from recalling the $1 million loan.                 We agree

that these letters were relevant evidence of intent to mislead

SCANA with the “design[] to lull the victims into a false sense of

security   [and]       postpone    their       ultimate   complaint    to     the

authorities.”       United States v. Lane, 474 U.S. 438, 451-52 (1986)

(quoting United States v. Maze, 414 U.S. 395, 403 (1974)).                     We

disagree with Stewart’s contention that the letters were also

unduly prejudicial because they contained indirect evidence of

matters on Media Fusion’s website.            The district court agreed with

Stewart in noting that the letters’ references to information found

on a website failed the best evidence rule.                 The court received

them, however, for a limited purpose and not for the substantive

evidence of the content of Media Fusion’s website, and in order to

be sure that the documents were received for that limited purpose,

the district court gave the jury a limiting instruction.               In these




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circumstances, we do not believe that the district court abused its

discretion.



                                    III

     Finally, Stewart contends that the district court erred in

calculating the amount of loss in determining his sentencing

guidelines range.      Finding that SCANA’s $1 million loan was “the

value of the money, property, or services unlawfully taken,”

U.S.S.G. § 2F1.1 App. Note 8 (Nov. 1998), the district court

increased    Stewart’s   offense   level   11    levels,     resulting   in    a

sentencing guideline range of 30-37 months’ imprisonment.             Stewart

argues that because he was not convicted of Count 5, which charged

him with wire fraud for SCANA’s $1 million loan, the court could

not consider the amount of the loan as relevant conduct.                     The

jury’s acquittal, however, was based on a failure of proof under a

standard    of   beyond-a-reasonable-doubt,      and   in    sentencing,     the

district court need only have found the loss of the $1 million by

a preponderance of the evidence.       Accordingly, in determining the

appropriate      sentencing   guideline,   the   court      was   entitled    to

consider acquitted conduct as relevant conduct.             See United States

v. Watts, 519 U.S. 148, 157 (1997).

     Moreover, the evidence supported the finding that $1 million

was the proper amount of loss.       Application Note 8 to U.S.S.G. §

2F1.1 (Nov. 1998) explains that in determining the loss, the court


                                    -6-
should consider the commentary to U.S.S.G. § 2B1.1, which provides

that “Where the offense involved making a fraudulent loan or . . .

other unlawful conduct involving a loan . . ., the loss is to be

determined under the principles set forth in the commentary to

section 2F1.1.”   U.S.S.G. § 2B1.1 App. Note 2 (Nov. 1998).    The

commentary to § 2F1.1 describes how the nominal loss -- in this

case the amount of the loan -- can overstate the actual loss when

the defendant has repaid some of the loan or collateralized it with

property that is not worthless.    See U.S.S.G. § 2F1.1 App. Note 8

(“If a defendant fraudulently obtains a loan by misrepresenting the

value of his assets, the loss is the amount of the loan not repaid

at the time the offense is discovered, reduced by the amount the

lending institution has recovered (or can expect to recover) from

any assets pledged to secure the loan”).       The district court,

however, concluded that there were no such offsets because as of

sentencing the loan remained uncollected and because Media Fusion

had provided no collateral.

     Stewart argues that SCANA was effectively a “‘strategic’

partner” with Media Fusion and thus recovered some value from the

loan because SCANA put the money to use in the common enterprise

“in an attempt to commercialize defendant’s technology.”       The

district court, however, reasonably found that SCANA received no

offsetting value from these efforts.    The technology never became

commercially viable and never provided any benefit to SCANA.


                                  -7-
     Because there was no repayment of the loan, no collateral to

secure   its   repayment,   or   no   other   expectancy   to   reduce   its

outstanding amount, the district court did not clearly err in

finding for sentencing that the loss was $1 million.

                             *        *       *

     Accordingly, we affirm the judgment of the district court. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court, and

argument would not aid in the decisional process.



                                                                  AFFIRMED




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