                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2003

USA v. Ginyard
Precedential or Non-Precedential: Non-Precedential

Docket 02-2259




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"USA v. Ginyard" (2003). 2003 Decisions. Paper 566.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/566


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                                 NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT



              No: 02-2259
             _____________

    UNITED STATES OF AMERICA

                      v.

      ISAIAH VIRGIL GINYARD,
                   Appellant

                     Appellant




Appeal from the United States District Court
  for the Eastern District of Pennsylvania
 (D.C. Criminal Action No. 00-cr-00207)
 District Judge: Honorable Robert F. Kelly


Submitted Under Third Circuit LAR 34.1(a)
           on March 7, 2003

         Before: ROTH, BARRY
      and FUENTES, Circuit Judges

       (Opinion filed: May 8, 2003)
                                      OPINION




ROTH, Circuit Judge:

       Isaiah Ginyard was charged with three counts of bank fraud in violation of 18

U.S.C. § 1344 and nineteen counts of mail fraud in violation of 18 U.S.C. § 1341. The

charges arose from Ginyard’s participation in three schemes to defraud WYSP Radio in

Philadelphia, the Arts and Entertainment (A&E) Network in New York City, the

Pennsylvania Department of Labor, and the Philadelphia Housing Authority.

       Ginyard had two co-defendants at trial. Terrell Pollard was involved in Ginyard’s

first scheme to defraud WSYP Radio and the A& E Network. Mark Hammond Davies

was involved in Ginyard’s second scheme to defraud the Pennsylvania Department of

Labor. Ginyard acted alone in his last scheme to defraud the Philadelphia Housing

Authority.

       At trial, Ginyard moved to sever the counts. The District Court denied the motion.

On December 14, 2001, a jury found Ginyard guilty of all nineteen counts. On April 29,

2002, Ginyard was sentenced to 27 months imprisonment. Ginyard appeals the denial of

his motion to sever.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the

motion denial for abuse of discretion. United States v. Hart, 273 F. 3d 363, 369 (3d Cir.

                                            2
2001).

         The decision to sever a trial is left to the sound discretion of the District Court.

See Zafiro v. United States, 506 U.S. 534 (1993) and United States v. Reicherter, 647 F.

2d 397, 400 (3d Cir. 1999).

         Fed. R. Crim. P. 8(a) permits joinder of two or more offenses being charged in the

same indictment if the offenses are of the “same or similar character or are based on the

same act or transaction or on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.” Fed. R. Crim. P. 14 permits the trial

court to sever defendants’ trials where “it appears that a defendant or the government is

prejudiced by a joinder.” Zafiro, 506 U.S. at 537.

         Ginyard argues that the three schemes are distinct and separate acts and therefore

do not constitute “transactions connected together or constituting parts of a common

scheme or plan” nor are they schemes of the “same or similar character.” Ginyard argues

that mere similarity of offenses does not meet the requirements of Fed.R.Crim.P. 8(b) in

order to warrant joinder of the offenses and the defendants.

         However, the District Court clearly pointed out that its decision to deny the

severance motion was based on “a sufficient connection and nexus between the various

schemes: the common bank account, the name, the company’s name and the time

period.” The record supports such a finding. Most of the charged offenses took place

between January 1995 and July 1995, which creates a temporal connection. Ginyard’s



                                                 3
First Fidelity bank account was the transactional nexus for all the fraud schemes. The

account’s statements indicate that checks from each of the charged fraud schemes were

deposited into this account. Also, Ginyard used his nephew’s name when endorsing

every check. We find that the District Court did not abuse its discretion when making its

decision to deny the motion to sever.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            4
TO THE CLERK:


    Please file the foregoing Opinion.




                                         By the Court,




                                                         /s/ Jane R. Roth
                                                  Circuit Judge




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